CPLR 503 and 510 [Venue]

Drayer-Arnow v Ambrosio & Co., Inc., 2020 NY Slip Op 01601 [2d Dept. 2020]

CPLR 503 provides, in pertinent part, that “[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” (CPLR 503[a]). The sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county (see CPLR 503[c]; O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 175 AD3d 540; Kidd v 22-11 Realty, LLC, 142 AD3d 488, 489; Matoszko v Kielmanowicz, 136 AD3d 762, 763).

“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that its choice of venue is proper” (Gonzalez v Sun Moon Enters. Corp., 53 AD3d 526, 526; see Kidd v 22-11 Realty, LLC, 142 AD3d at 489). To succeed on their motions here, the moving defendants were obligated to demonstrate that, on the date that this action was commenced, none of the parties resided in Queens County (see Pomaquiza v 145 WS Owner, LLC, 172 AD3d 1119, 1120; Campbell v Western Beef, 123 AD3d 966, 967; Ramos v Cooper Tire & Rubber Co., 62 AD3d 773). Only if the moving defendants made such a showing was the plaintiff required to establish, in opposition, that the venue she selected was proper (see Deas v Ahmed, 120 AD3d 750, 751; Chehab v Roitman, 120 AD3d 736, 737).

Here, the moving defendants failed to submit the certificate of incorporation of Inshallah. In support of its motion, Northridge admitted that the address of Inshallah’s principal office listed on the website of the New York State Department of State, Division of Corporations, was located in Queens County, which only confirmed that the plaintiff’s choice of venue was proper. Although Inshallah’s chief executive officer claimed that Inshallah’s principal office was in Suffolk County and that it no longer maintained its principal office in Queens County, the moving defendants failed to establish that Inshallah’s certificate of incorporation had been amended to designate a county other than Queens (see Kidd v 22-11 Realty, LLC, 142 AD3d at 489; Matoszko v Kielmanowicz, 136 AD3d at 763; Hamilton v Corona Ready Mix, Inc., 21 AD3d 448, 449). The plaintiff’s submission, in opposition, of a certified copy of Inshallah’s certificate of incorporation, which demonstrated that Inshallah’s principal office was located in Queens County, conclusively established that her choice of venue was proper. Accordingly, those branches of their motions which were pursuant to CPLR 510(1) and 511(a) to change the venue of the action from Queens County to Suffolk County should have been denied (see O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 175 AD3d 540; Kidd v 22-11 Realty, LLC, 142 AD3d at 489; Ramos v Cooper Tire & Rubber Co., 62 AD3d at 773).