CPLR § 510; CPLR R. 511

Plaintiff, a Pennsylvania resident, was injured on premises owned
and operated by AMC in Nassau County when he tripped and fell over
packaging material used to wrap merchandise being delivered by
defendant On Time Delivery Service, Inc. Plaintiff commenced this
action in Supreme Court, Bronx County, basing venue on the residence of
defendant AMC, as reflected in its certificate of incorporation filed
January 22, 1970. Prior to answering, AMC served a demand to change
venue to Nassau County on the ground that the county designated by
plaintiff was improper (CPLR 503[a]). AMC then moved to change venue
(CPLR 510[1]; 511), submitting documentation from the Department of
State indicating that the corporation did not reside in Bronx County at
the time plaintiff commenced the action. In reply to plaintiff's
opposing argument that venue was proper based on the certificate of
incorporation, AMC submitted the affidavit of its vice president
attesting that the corporation had been operating out of Nassau County
for nearly 30 years. AMC's reply papers further contended that the
convenience of material witnesses and the interest of justice also
warranted the venue change.

Supreme Court properly denied the motion for change of venue as
of right as untimely, having been interposed more than 15 days after
service of AMC's antecedent demand (CPLR 511[b]). The court also
correctly rejected AMC's application for a discretionary change of
venue as having been improperly advanced for the first time in reply (Ritt v Lenox Hill Hosp.,
182 AD2d 560, 562 [1992]), noting that, in any event, AMC had failed to
demonstrate how the convenience of witnesses or the interest of justice
would be served. The court nevertheless exercised its discretion to
grant the change of venue "for reasons not enumerated by statute or in
the interest of justice as enumerated by statute." The court concluded
that the case has only a [*2]tenuous
connection to Bronx County and, "all things being equal, a transitory
action should be venued in the county of occurrence." This was error.

As this Court stated in Velasquez v Delaware Riv. Val. Lease Corp. (18 AD3d 359, 360 [2005]):

"We have long held that The designation of a county as
the location of a corporation's principal office in a certificate of
incorporation is controlling in determining corporate residence for the
purposes of venue' (Conway v Gateway Assoc., 166 AD2d 388, 389
[1990]). Since the certificate of incorporation here was never formally
amended to change the principal place of business, the original
designation governs" (citing Nadle v L.O. Realty Corp., 286 AD2d 130, 132 [2001]).

While the situs of plaintiff's injury provides a basis to change venue to Nassau County (see e.g. Young Hee Kim v Flushing Hosp. & Med. Ctr.,
138 AD2d 252 [1988]), a discretionary change of venue (CPLR 510[3])
still must be supported by a statement detailing the identity and
availability of proposed witnesses, the nature and materiality of their
anticipated testimony, and the manner in which they would be
inconvenienced by the designated venue (see Leopold v Goldstein, 283 AD2d 319 [2001]), requirements the court had correctly found to be unsatisfied.