CPLR § 510 Grounds for change of place of trial
CPLR R. 511 Change of place of trial
CPLR R. 327 Inconvenient forum
Feather v Goglia, 2009 NY Slip Op 06661 (App. Div., 2nd, 2009)
The plaintiff placed the venue of this action in Queens County based
upon the defendant's purported residence at the time of the
commencement of the action (see CPLR 503[a]). The defendant
moved to transfer the venue of the action to Nassau County, alleging
that he did not reside in Queens County when the action was commenced.
In support of the motion, the defendant submitted, inter alia, several
mobile telephone bills and a motor vehicle lease bearing his name and a
Nassau County address, and several electric bills addressed to a person
named Catherine Goglia at the same Nassau County address. Thus, the
defendant raised an issue of fact as to whether he resided in Nassau
County when this action was commenced (see Johnson v Gioia, 38 AD3d 845; Rivera v Jensen,
307 AD2d 229, 230). Furthermore, the evidence submitted by the
plaintiff in opposition, that the defendant's driver's license listed a
Queens County address and that the vehicle registration listed a Nassau
County address, only raised further issues of fact regarding residency (see Gonzalez v Weiss, 38 AD3d 492).
Since this issue of fact could not properly have been resolved on the
papers alone, the Supreme Court should have held a hearing on the issue
of residency prior to determination of the motion (see Johnson v Gioia, 38 AD3d 845; Ramondi v Paramount Leasehold L.P., 37 AD3d 447).
The plaintiff's contention that the defendant is estopped from
contesting venue because the defendant failed to comply with Vehicle
and Traffic Law § 505(5) is without merit. The cases relied upon by the
plaintiff are distinguishable, inasmuch as all of those cases address
service of process (see e.g. Walker v Reyes, 59 AD3d 436, 437; Candela v Johnson, 48 AD3d 502, 503; [*2]Velasquez v Gallelli, 44 AD3d 934, 935). In contrast, the instant appeal involves a motion pursuant to CPLR 510 and 511 to transfer the venue of the action.
Goldberg v Goldberg, 2009 NY Slip Op 06800 (App. Div., 2nd, 2009)
The Supreme Court providently exercised its discretion in denying the
appellant's motion pursuant to CPLR 510(3) to change the venue of this
action from Kings County to Sullivan County based on the convenience of
material witnesses (see Frankel v Stavsky, 40 AD3d 918, 919; O'Brien v Vassar Bros. Hosp.,
207 AD2d 169, 172). In support of his motion, the appellant failed to
sufficiently establish that the nonparty witnesses for whose
convenience the change of venue was sought were willing to testify on
his behalf and would be inconvenienced if venue were not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909; Miszko v Leeds & Morelli, 269 AD2d 372; Cumberbatch v Gatehouse Motel & Rest., 265 AD2d 370; Rich v O'Connor, 212 AD2d 767). Moreover, the appellant failed to specify the nature and materiality of their anticipated testimony (see Shindler v Warf, 24 AD3d 429, 430; Giaimo v Hastings, 19 AD3d 365, 366; Weisemann v Davison, 162 AD2d 448).
Brown v Dawson, 2009 NY Slip Op 06734 (App. Div., 2nd, 2009)
Plaintiff properly placed venue in New York County based upon St.
Vincent's Hospital and Medical Center's designation of New York County
as its corporate residence on its certificate of incorporation (see CPLR 503[c]; Krochta v On Time Delivery Serv., Inc., 62 AD3d 579, 580 [2009]; Velasquez v Delaware Riv. Val. Lease Corp., 18 AD3d 359, 360 [2005]).
Nor does the record support a discretionary change of venue
pursuant to CPLR 510(3), inasmuch as appellant failed to detail the
identity and availability of proposed witnesses, the nature and materiality of the anticipated testimony and the manner in which they would be inconvenienced by the designated venue (see Parker v Ferraro, 61 AD3d 470 [2009]).
Trump v Deutsche Bank Trust Co. Ams., 2009 NY Slip Op 06831 (App. Div., 2nd, 2009)
A contractual forum selection clause is prima facie valid and
enforceable "unless it is shown by the challenging party to be
unreasonable, unjust, in contravention of public policy, invalid due to
fraud or overreaching, or it is shown that a trial in the selected
forum would be so gravely difficult that the challenging party would,
for all practical purposes, be deprived of its day in court" (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, lv denied NY3d, 2009 NY Slip Op 83212 [2009]; see Brook Group v JCH Syndicate 488, 87 NY2d 530, 534; Harry Casper, Inc., v Pines Assoc., L.P., 53 AD3d 764, 764-765; Best Cheese Corp. v All-Ways Forwarding Int'l., Inc., 24 AD3d 580, 581; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535, 536; Premium Risk Group v Legion Ins. Co.,
294 AD2d 345, 346). The plaintiffs failed to demonstrate that the
subject clause contained in the Mezzanine Loan Agreement was invalid
for any of these reasons. Nor is there any merit to their argument that
the subject clause contained in the Mezzanine Loan Agreement was either
permissive or insufficiently mandatory, or applied only to actions
commenced by the lender (see e.g. Fear & Fear, Inc. v N.I.I. Brokerage, L.L.C.,
50 AD3d 185). Further, and contrary to the plaintiffs' contention, the
Mezzanine Loan Agreement forum selection clause is neither subordinate
to, nor in conflict with, the forum selection clause in the
construction loan agreement. We also reject the claim that the [*3]complaint
in Action No. 1 does not seek relief from the Mezzanine defendants
sufficient to trigger the forum selection clause in the Mezzanine Loan
Agreement. Accordingly, the motion pursuant to CPLR 501 and 511 to
change the venue of Action No. 1 from Queens County to New York County
should have been granted, and the two actions should have been directed
to be jointly tried in New York County.
Kargbo-Turay v Beam Bros. Trucking, Inc., 2009 NY Slip Op 06806 (App. Div., 2nd, 2009)
In a closely related action arising out of the same incident, we
held that the motion for dismissal under the doctrine of forum non
conveniens pursuant to CPLR 327(a) should have been granted, with
certain conditions (see Turay v Beam Bros. Trucking Inc., 61
AD3d 964). In this case, there is nothing that supports a different
result, and we find that "in the interest of substantial justice the
action should be heard in another forum" (CPLR 327[a]).
To assure the availability of a forum for the action, our
reversal and granting of the motion to dismiss is conditioned upon the
appellant stipulating to waive jurisdictional and statute of
limitations defenses as indicated (see CPLR 327[a]; see Turay v Beam Bros. Trucking Inc., 61 AD3d at 964; Cheggour v R'Kiki, 293 AD2d 507).
The bold is mine.
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