Second Department Holds that “Sheltering in Place in a Seasonal Home” During the COVID-19 Pandemic Does Not Create a “Sufficient Degree of Permanence” to Support Parties’ Residency for Venue Purposes

• Posted on: Mar 11 2022

By Jonathan H. Freiberger

In general terms, venue is the place where the trial of an action will take place.  Venue issues in New York practice are governed by Article 5 of the CPLR. [Eds. Note: this BLOG has previously written about Article 5 of the CPLR [here] and [here].]  As indicated in our prior articles, the plaintiff, as the party bringing the proceeding, generally gets to choose, in the first instance, venue.  Plaintiffs, however, do not always choose a proper venue (“Improper Venue Selection”).  In such instances, a defendant has an opportunity to change the Improper Venue Selection to a proper one.  See CPLR 510(1).  Other times, although venue is proper, a defendant (or even a plaintiff) may seek a change based on considerations such as the convenience of witnesses and/or potential prejudice to a party should the action proceed in the venue chosen by the plaintiff (a “Discretionary Change”).  See CPLR 510(2) and (3).

According to CPLR 503(a), “[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced;  the county in which a substantial part of the events or omissions giving rise to the claim occurred;  or, if none of the parties then resided in the state, in any county designated by the plaintiff [and, further, a] party resident in more than one county shall be deemed a resident of each such county.”¹

On March 9, 2022, the Appellate Division, Second Department, decided Fisch v. Davidson, which presented “the issue of whether sheltering in place [during the COVID-19 pandemic] in a seasonal home creates a sufficient degree of permanence to establish residency at that location” to satisfy the “residence” requirements of the venue provisions of the CPLR.  The plaintiff in Fisch was the husband and the defendant was the wife.

An abridged version of the basic facts as summarized by the Court follow.  In the mid-1980s husband and wife moved to New Jersey after graduating law school.  In the late 1990s, the parties rented a “pied-a-terre” in Manhattan and then purchased an apartment on the Upper West Side in Manhattan.  After a while, the parties began spending more time in Manhattan and less time in New Jersey.  Their tax returns began to reflect their residence was New York City and the couple paid New York City income tax.  In the midst of expanding their Upper West Side apartment, the parties separated and husband began renting his own apartment in Manhattan.  The New Jersey house was sold in 2020.  In 2012, the parties purchased a house in Southampton that was primarily used on summer weekends.  

During the COVID-19 pandemic, wife and the parties’ pregnant daughter “retreated” to the Southampton house due to the daughter’s immunocompromised status, but also continued to spend time in the New York City apartment.

In 2020, the husband commenced a divorce proceeding in supreme court Suffolk County.  Thereafter, the wife moved, pursuant to CPLR 510 and 511, to change venue to New York County, where she alleged both parties resided. Supreme court denied the wife’s motion to change venue to New York County finding that she was a resident of Suffolk County (CPLR 503(a) and 510(1)) and because the wife “failed to demonstrate that the convenience of the material witnesses and the ends of justice would be promoted by the change” (CPLR 510(3)).  The Second Department reversed.  In so doing, the Court noted that while the CPLR and its predecessor statutes base venue on where the parties “resided” at the commencement of the action, the term “resided” is not defined therein.  Accordingly, the Court recognized that courts have looked to the “common-law definition of ‘resided’” and analyzed numerous cases addressing that definition.  Among other cases, the Second Department looked at “the leading Court of Appeal case on the issue of the meaning of ‘resided,’” Yaniveth R. v. LTD Realty Co., 27 N.Y.3d 186 (2016), and stated:

In doing so, the Court of Appeals [in Yaniveth] reviewed, among other things, venue cases interpreting CPLR 503(a) and its predecessor, and synthesized from them the following definition of “residence”:

residence means living in a particular locality, even if a person does not intend to make that place a fixed and permanent home, i.e., a domicile.  A person’s “residence” entails something more than temporary or physical presence, with some degree of permanence and an intention to remain. Thus, although it is true that a person may have more than one residence, to consider a place as such, he or she must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanence.

(Citations, internal quotation marks, ellipses and brackets omitted.)

After recognizing that the “case presents two issues relating to the parties’ residence: (1) whether the parties’ seasonal use of the Southampton house on weekends prior to March 2020 made them residents of Suffolk County; and (2) whether the defendant’s retreat to the Southampton house at the outset of the COVID-19 pandemic made her a resident of Suffolk County, Second Department concluded that “neither of these things made the parties residents of Suffolk County.”  The Court stated:

The [wife] clearly established that the parties primarily resided in New York County. The [wife] submitted, among other things, copies of: the parties’ income tax returns, listing their address in New York County as their residence and reflecting their payment of New York City income taxes; the [wife]’s voter registration showing that she was registered to vote in New York County; the [wife]’s driver license listing her address in New York County; motor vehicle records showing that the parties’ cars were all registered in New York City or were in the process of having the registration transferred from New Jersey to New York City; an email from the [husband] to the parties’ art insurance carrier stating that the parties did not have any intention of adding any art to the Southampton house; and bank statements listing the [New York City] apartment and the [husband]’s Manhattan office as the parties’ addresses.

Thus, the Court found that the pre-pandemic primarily weekend use of the Southampton house was insufficient to establish residency in Suffolk County.  The Court further found that “contrary to the Supreme Court’s conclusion, the time the defendant spent in the Southampton house in 2020 during the COVID-19 pandemic was not enough to make her a resident of Suffolk County.” As to the COVID-19 timeframe, the Court stated:

Here, although the [wife] retreated to the Southampton house in March 2020, it is undisputed that the [wife] planned only to stay there temporarily to assist her immunocompromised daughter and newborn grandchild when the COVID-19 pandemic was at its zenith in New York City. Under the circumstances of this case, the [wife] did not have the bona fide intent to retain Suffolk County as a residence with at least some degree of permanency.

(Citations, internal quotation marks, ellipses and brackets omitted.)

Because the Court determined that supreme court should have granted the wife’s motion pursuant to CPLR 510 and 511, it did not reach the issue of whether a discretionary change of venue was warranted under CPLR 510(3).

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

1. Notwithstanding the general provision of CPLR 503(a), courts will enforce venue provisions in contracts.  See CPLR 501; Casale v. Sheepshead Nursing & Rehab. Center, 131 A.D.3d 436, 437 (2^nd Dep’t 2015).  Further, Article 5 of the CPLR contains venue provisions for specific types of cases.  See CPLR 504, 505, 506, 507, 508 and 509.