Venue

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Simon v Usher, 2012 NY Slip Op 01544 (1st Dept., 2012)

The motion to change venue was properly granted upon the grounds that, except for defendants Usher and Usher, M.D., P.C., all of the defendants and plaintiffs reside in Westchester County, and that while Usher, M.D., P.C., maintains a satellite office in Bronx County that it rents one day per month, Usher's primary office is located in Westchester County, the office where plaintiff was treated. Thus, movants met their initial burden of establishing that the Bronx County venue chosen by plaintiffs is improper (CPLR 503[a]; 510[1]; Hernandez v Seminatore, 48 AD3d 260 [2008]), and since [*2]plaintiffs forfeited their right to select the venue by choosing an improper venue in the first instance, venue is properly placed in Westchester County, where most of the parties reside (Weiss v Wal-Mart Stores E., L.P., 83 AD3d 461 [2011]).

Lapidus v 1050 Tenants Corp., 2012 NY Slip Op 02842 (2nd Dept., 2012)

A party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses and the ends of justice will be promoted by the change (see CPLR 510[3]; McManmon v York Hill Hous., Inc., 73 AD3d 1137, 1138; Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899, 899; Heinemann v Grunfeld, 224 AD2d 204). In doing so, the moving party must set forth (1) the names, addresses, and occupations of prospective witnesses, (2) the facts to which the prospective witnesses will testify at trial, so that the court may judge whether the proposed evidence of the prospective witnesses is necessary and material, (3) a statement that the prospective witnesses are willing to testify, and (4) a statement that the prospective witnesses would be greatly inconvenienced if the venue of the action was not changed (see Lafferty v Eklecco, LLC, 34 AD3d 754, 755; O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172).

Here, the defendant failed to establish that the real estate agent who cobrokered the sale of the plaintiffs' apartment in its cooperative building would be greatly inconvenienced if venue was not changed to New York County (see McManmon v York Hill Hous., Inc., 73 AD3d at 1138; Walsh v Mystic Tank Lines Corp., 51 AD3d 908; Ferndandes v Lawrence, 290 AD2d 412; Blumberg v Salem Truck Leasing, 276 AD2d 577; Maynard v Oakes, 144 AD2d 229, 230), and failed to satisfy all of the required criteria for a change of venue with respect to an attorney who served the defendant [*2]with a restraining notice in a related action. The remaining prospective witnesses identified by the defendant are its employees or agents, whose convenience is not a factor in considering a motion for a change of venue pursuant to CPLR 510(3) (see McManmon v York Hill Hous., Inc., 73 AD3d at 1138; Curry v Tysens Park Apts., 289 AD2d 191; Cilmi v Greenberg, Trager, Toplitz & Herbst, 273 AD2d 266, 267; D'Argenio v Monroe Radiological Assoc., 124 AD2d 541, 542). Accordingly, the defendant's motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to New York County based upon the convenience of material witnesses should have been denied.

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