Fensterman v Joseph, 2018 NY Slip Op 04532 [2d Dept 2018]
It is undisputed that, pursuant to CPLR 503(a), venue of the Ulster County Action is properly in Ulster County, where Bacci, one of the Ulster plaintiffs, resided at the time the action was commenced (see O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171). A motion to change venue on discretionary grounds, unlike motions made as of right, must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county (see CPLR 2212[a]; Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 155 AD3d 1413; Schwartz v Yellowbook, Inc., 118 AD3d 691, 692; Rubens v Fund, 23 AD3d 636, 637). The Fenstermen parties, therefore, were required to make a motion pursuant to CPLR 510(3) either in Ulster County, where the Ulster County Action was pending, in another county in the 3rd Judicial District, or in a county contiguous to Ulster County (see CPLR 2212[a]; Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 155 AD3d 1413; Schwartz v Yellowbook, Inc., 118 AD3d at 692; Rubens v Fund, 23 AD3d at 637). Since Ulster County and Nassau County are not contiguous, and Nassau County is not in the 3rd Judicial District, the Fensterman parties' motion to change venue pursuant to CPLR 510(3) based on discretionary grounds was improperly made in the Supreme Court, Nassau County (see Minenko v Swinging Bridge Camp Grounds of N.Y., Inc., 155 AD3d 1413; Schwartz v Yellowbook, Inc., 118 AD3d at 692; Rubens v Fund, 23 AD3d at 637-638). Although not argued by the parties in the Supreme Court, Nassau County, but argued on appeal, we reach this issue in the exercise of our discretion because it appears on the face of the record and could not have been avoided or explained if raised in the Supreme Court (see Rubens v Fund, 23 AD3d at 638; see also Coscia v Jamal, 156 AD3d 861).
The parties' remaining contentions need not be reached in light of our determination.
Accordingly, the Supreme Court, Nassau County, should have denied the plaintiffs' motion pursuant to CPLR 510(3) to change venue of the Ulster County Action to Nassau County for the convenience of witnesses, with leave to renew in the Supreme Court, Ulster County.
Bold is mine.
Patiwana v Shah, 2018 NY Slip Op 04746 [2d Dept. 2018]
CPLR 503(a) provides, in pertinent part, "except 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." Here, since the plaintiff and the defendants, the only parties to this derivative action (see Niles v New York Cent. & Hudson Riv. R. R. Co., 176 NY 119, 124; Flynn v Brooklyn City R. R. Co., 158 NY 493, 508; Jones v Van Heusen Charles Co., 230 App Div 694, 697; cf. Jacobs v Cartalemi, 156 AD3d 605; Barbaro v Spinelli, 121 AD3d 727, 728), were residents of Nassau County when it was commenced, venue was improperly placed in Queens County. Contrary to the plaintiff's contention, the fact that two of the corporations and the LLC are located in Queens County did not make Queens County a proper venue to commence this action, since those entities are not parties to the action.
Furthermore, venue could not have been properly placed in Queens County pursuant to CPLR 507. While CPLR 507 mandates that venue of an action which seeks a judgment that will "affect the title to, or the possession, use or enjoyment of, real property" shall be placed in the county where the property is located (see Clark v Clark, 93 AD3d 812, 816), here, the action seeks, inter alia, a determination of the plaintiff's membership interest in the LLC (see Fish v Davis, 146 AD3d 485, 486; Rubinstein v Bullard, 285 AD2d 366, 367; Suddin v Lynbrook Gardens Co., 127 Misc 2d 406, 409 [Sup Ct, Special Term, NY County]). In opposition to the motion, the plaintiff failed to demonstrate that the relief he is seeking will affect real property in Queens County.
The plaintiff failed to move by notice of cross motion to retain venue in Queens County pursuant to CPLR 510(3), and we decline to review the plaintiff's informal request in the exercise of discretion (see CPLR 2215; Fried v Jacob Holding, Inc., 110 AD3d 56, 64, 65).
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