CPLR § 510 venue properly changed. And other stuff ( R. 511; § 503)

CPLR § 510 Grounds for change of place of trial

Lopez-Viola v Duell2010 NY Slip Op 08539 (App. Div., 2nd 2010) 

The Supreme Court improvidently exercised its discretion in denying the defendants' motion to change the venue of the action from Kings County to Montgomery County, where the underlying motor vehicle accident occurred. The papers submitted by the appellants contained (1) the names, addresses, and occupations of two prospective witnesses, both of whom were officers with the Montgomery County Sheriff's Department, (2) the facts to which the witnesses would testify at trial, (3) statements demonstrating that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908; Lafferty v Eklecco, LLC, 34 AD3d 754; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d 313). Moreover, the convenience of local government officials is of paramount importance, because they should not be kept from their duties unnecessarily (see Lafferty v Eklecco, LLC, 34 AD3d at 754; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d at 313). In contrast, the plaintiff's residence was the only apparent connection to Kings County and, in opposition to the motion, and the plaintiff failed to offer proof that there were any independent witnesses who would be inconvenienced if the action were transferred to Montgomery County.

Myoung Hee Yi v Meitetsu Express, 2010 NY Slip Op 08545 (App. Div., 2nd 2010)

For venue purposes, generally the sole residence of a foreign corporation is the county within the State in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York, or an amendment thereof (seeCPLR 503[c]; Business Corporation Law § 102[a][10]; Ashjian v Orion Power Holdings, Inc., 9 AD3d 440; Bailon v Avis Rent A Car,270 AD2d 439, 440; Collins v Trigen Energy Corp., 210 AD2d 283). Thus, here, where the general rule applies, New York County was the residence of the defendant Meitetsu Express, a California corporation authorized to do business in New York State, as that was the county designated in its application for authority. Accordingly, since none of the parties maintained a residence in Queens County, the plaintiff's designation of Queens County as the place of trial was improper, and the Supreme Court erred in denying the defendants' motion for a change of venue from Queens County to Nassau County, where the plaintiff and the individual defendant resided and the accident occurred. 

Moracho v Open Door Family Med. Ctr., Inc., 2010 NY Slip Op 0938 (App. Div., 1st 2010)

While there is no statutory time limit for a motion to change venue upon dismissal of a party whose residence provided the basis for venue, this Court has nonetheless required that such motions be made promptly (Clase v Sidoti, 20 AD3d 330 [2005]; Caplin v Ranhofer, 167 AD2d 155, 157-58 [1990]), that is, within a reasonable time after the movant obtains knowledge of the facts supporting the request (Herrera v R. Conley Inc., 52 AD3d 218 [2008]; Diaz v Clock Tower Assoc., 271 AD2d 290 [2000]). It also bears noting that a party need not wait for notice of entry of the order dismissing the improper party before it moves for a change of venue (see Emerick v Metropolitan Transp. Auth., 272 AD2d 150 [2000] [venue motion made simultaneous with dismissal motion]).

Here, defendants may have been aware as early as February 28, 2008, fifteen months before making their motion, that Primary Care Development Corporation, the sole defendant on whose residence venue in New York County was based, sought dismissal of the action against it [FN1]. Thereafter, Primary Care's September 2008 dismissal motion, made more than eight moths prior to the other defendants' venue applications, was unopposed. By order entered March 4, 2009, the court dismissed Primary Care from the case. In its order, the court explicitly stated that [*2]"none of the remaining parties has any connection to New York County and that [the] case is therefor amenable to a motion to change venue".

Notwithstanding this pronouncement, the remaining defendants waited an additional three months, during which time they appeared in New York County and set a trial date, without giving any indication of a venue problem. Two months after the trial date was set, the motion was made to change venue to Westchester. Given these circumstances, the grant of the motion was an improvident exercise of discretion and an implicit endorsement of careless motion practice, in disregard of the important principles of fair notice and judicial economy (see e.g. Herrera v R. Conley Inc., 52 AD3d 218 [2008]; Schwarz v Erpf Estate, 232 AD2d 316 [1996]; see also Litt v Balmer, 146 AD2d 559 [1989] [that trial date had been set was factor supporting finding that granting untimely venue change was abuse of discretion]).

There is a dissent.


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