Category: CPLR § 503

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Inshallah’s chief executive officer claimed that Inshallah’s principal office was in Suffolk County and that it no longer maintained its principal office in Queens County, the moving defendants failed to establish that Inshallah’s certificate of incorporation had been amended to designate a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).

CPLR 503(a)

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).

Venue

Janis v Janson Supermarkets LLC, 2018 NY Slip Op 03333 [1st Dept. 2018]

Wakefern, a foreign corporation, submitted a copy of its application for authorization to conduct business filed with the Secretary of State, in which it identified New York County as "[t]he county within this state where its office is to be located" (Business Corporation Law § 1304[a][5]). Wakefern's designation of New York County in its application is controlling for venue purposes, even if it does not actually have an office in New York County (see Crucen v Pepsi-Cola Bottling Co. of N.Y., Inc., 139 AD3d 538 [1st Dept 2016]; Shetty v Volvo Cars of N. Am., LLC, 38 AD3d 202 [1st Dept 2007]; Job v Subaru Leasing Corp., 30 AD3d 159 [1st Dept 2006]; CPLR 503[c]).

Kochan v Target Corp., 2018 NY Slip Op 03445 [1st Dept. 2018]

Supreme Court did not improvidently exercise its discretion in granting Target's motion to change venue to Suffolk County even though plaintiff properly placed venue in New York County based upon Target's principal place of business at the time the action was commenced (see CPLR 503[a], [c]). The motor vehicle accident happened in Suffolk County, plaintiffs and codefendants live in that county, the decedent received her medical treatment there (see Lopez v Chaliwit, 268 AD2d 377 [1st Dept 2000]). Target also submitted the affidavits of two Suffolk County police officers, who averred that they were involved in the investigation including interviewing witnesses at the accident location and that they would be inconvenienced by having to travel to New York County because it would cause them to be absent from their police duties for a full day (see Kennedy v C.F. Galleria at White Plains, 2 AD3d 222, 223 [1st Dept 2003]).

That the police officers signed affidavits in favor of the motion to change venue establishes that they were aware of the action and demonstrates that they are willing to testify at trial. It was proper for the motion court to consider the police officers' convenience, because their testimony regarding their investigation as to how the accident happened bears on liability (see Hoogland v Transport Expressway, Inc., 24 AD3d 191 [1st Dept 2005]). Furthermore, the police officers' affidavits are not insufficient because they do not set forth their home addresses, since it is undisputed that they work in Suffolk County (see

Gorodetsky v Bridgewater Wholesalers, Inc., 2018 NY Slip Op 03122 [2d Dept. 2018]

Here, the defendants failed to disclose the addresses of all but one of the prospective witnesses, made only conclusory statements that the prospective witnesses would be inconvenienced, and failed to establish the manner or extent to which those witnesses would be inconvenienced (see Ambroise v United Parcel Serv. of Am. Inc., 143 AD3d at 928; Matter of Supplier Distribution Concepts, Inc., 80 AD3d 869, 871). With regard to those witnesses who were New York State police officers, while "the convenience of local government officials, such as police officers, is of paramount importance because they should not be kept from their duties unnecessarily" (Lafferty v Eklecco, LLC, 34 AD3d 754, 755), here, only conclusory statements, without any details, were provided as to how those witnesses would be inconvenienced. As such, these statements were insufficient to establish that those witnesses would be inconvenienced if venue were not changed.

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.

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

CPLR § 510 Grounds for change of place of trial

Lopez-Viola v Duell, 2010 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.

 

CPLR § 511(b) Sufficiency of affidavit can’t be weighed, but contents may be considered.

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial 

HVT, Inc. v Safeco Ins. Co. of Am., 2010 NY Slip Op 06571 (App. Div., 2nd 2010)

On this appeal, we must determine whether an affidavit served by a plaintiff in accordance with CPLR 511(b) may be scrutinized to ensure that it does, in fact, "show[ ] either that the county specified by the defendant is not proper or that the county designated by him is proper," or if the mere service of such an affidavit, irrespective of its content, satisfies the plaintiff's burden. We hold that, while the sufficiency of the factual averments set forth in such affidavits may not be weighed, the contents of the affidavits may nonetheless be considered to confirm that the averments therein do indeed "show[ ] either that the county specified by the defendant is not proper or that the county designated by [the plaintiff] is proper" as required by the statute (CPLR 511[b]).

It's a long decision, but it's worth reading.  I'll add more later.

 

Residence of Foreign Corporation: CPLR § 503

CPLR § 503 Venue based on residence

DeMichael v Jaeger, 2010 NY Slip Op 00918 (App. Div., 2nd, 2010)

For venue purposes, the sole residence of a foreign corporation is the county 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 (see CPLR 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; Collins v Trigen Energy Corp., 210 AD2d 283). Thus, the plaintiff properly placed venue of this action in Nassau County, as that was the county designated by the defendant American Teleradiology Nighthawks, P.C., in its application for authority. The defendant Kingston Hospital failed to sustain its burden of demonstrating that the convenience of nonparty witnesses would be [*2]served by changing venue from Nassau County to Ulster County (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908; Markowitz v Makura, Inc., 29 AD3d 650; Mei Ying Wu v Waldbaum, Inc., 284 AD2d 434; McAdoo v Levinson, 143 AD2d 819).

The bold is mine.

CPLR § 503(a); CPLR § 510; CPLR R. 511(d)

CPLR § 510 Grounds for change of place of trial

The court, upon motion, may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in the proper county; or3. the convenience of material witnesses and the ends of justice will be promoted by the change.

CPLR R. 511 Change of place of trial

CPLR § 503 Venue based on residence

Morreale v 105 Page Homeowners Assn., Inc., 2009 NY Slip Op 05952 (App. Div., 2nd, 2009)

Upon renewal, the appellants submitted excerpts of the
plaintiff's deposition testimony, which was taken after the Supreme
Court's original order dated January 8, 2007, denying their motion
pursuant to CPLR 510(1) and 511 to change the venue of the action from
Kings County to Richmond County. The relevant testimony revealed that
on or about December 31, 2005, which was just over one year after the
subject accident, the plaintiff moved to her son's apartment in
Brooklyn from her house in Staten Island after a "diabetic episode,"
that in March or April 2006, she entered into a contract to purchase a
house in New Jersey, that on August 8, 2006, three days after
commencing this action, she "took over" her new house in New Jersey,
and moved into it in November 2006.
[*2]

A residence for venue purposes
is a place where one stays for some time with "the bona fide intent to
retain the place as a residence for some length of time and with some
degree of permanency" (Katz v Siroty, 62 AD2d 1011, 1012; see Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d 518, 519; Mandelbaum v Mandelbaum, 151 AD2d 727, 728).

Upon renewal, the appellants made a prima facie showing that the
plaintiff was temporarily staying at the Brooklyn apartment at the time
she commenced this action without "the bona fide intent to retain the
place as a residence for some length of time and with some degree of
permanency" (Katz v Siroty, 62 AD2d at 1012; see Neu v St. John's Episcopal Hosp., 27 AD3d 538; Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d at 519; Sibrizzi v Mount Tom Day School, 155 AD2d 337). The plaintiff failed to rebut that showing (see Samuel v Green,
276 AD2d 687). Accordingly, upon renewal, the appellants' motion to
change venue from Kings County to Richmond County, the county where the
defendants resided, should have been granted (see CPLR 503[a]; Maggio v Wal-Mart Stores, 275 AD2d 350, 351).

The bold is mine.

CPLR § 503; CPLR § 510; Venue

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

Janet Addo v Melnick, 2009 NY Slip Op 02720 (App. Div., 1st, 2009)

On reargument, the court denied defendants' motion because the
alleged malpractice occurred in the Bronx. However, venue is based on
the parties' residence (CPLR 503[a]), not where the cause of action
arose (Hitchoff v Air Brook Limousine, Inc., 26 AD3d 310 [2006]). The "residence" of a natural person is his or
her abode, not office (see Friedman v Law, 60 AD2d 832
[1978]), and the individual defendant here resides in Westchester
County. The corporate defendant also "resides" in Westchester. "The
designation of a county as the location of a corporation's principal
office in a certificate of incorporation is controlling in determining
corporate residence for the purposes of venue" (Conway v Gateway Assoc., 166 AD2d 388, 389 [1990]), even if the corporation maintains an office or facility in another county (Altidort v Louis, 287 AD2d 669, 670 [2001]), and even if it is a professional corporation (see Della Vecchia v Daniello, 192 AD2d 415 [1993]).

In its original decision, the motion court properly found
plaintiff's affidavit insufficient as proof of her residence because it
contradicted her prior deposition testimony that she had moved from the
Bronx to New Jersey prior to November 22, 2006, the date on which she
commenced this action (see Nemeroff v Coby Group, 54 AD3d 649,
650-651 [2008]). In this regard, plaintiff had testified that she
thought she moved to New Jersey on a Friday during the third week of
November 2006 on what she thought was the 18th day of the month [FN1].
While the dissent construes this testimony as an expression of
uncertainty, we find it an admission. We look to Federal Rules of
Evidence rule 801(d)(2)(B), which defines a party's admission as "a
statement of which the party has manifested an adoption or belief
in its truth [emphasis added]." Inasmuch as the phrase "I think" is an
expression of belief, we conclude that such an expression can be an
admission. The binding effect of such an admission is illustrated by
this Court's recent decision in McNeill v [*2]LaSalle Partners (52 AD3d 407 [2008]), which reads, in part, as follows:

"The trial court also erred in precluding appellants
from questioning plaintiff on cross-examination about his deposition
testimony that the liquid on which he slipped might have been
encapsulate' (a milky liquid used in the abatement of asbestos). . . At
his deposition, plaintiff testified that he thought the liquid
on which he slipped could be some kind of encapsulate, but I wasn't
sure.' At trial, however, plaintiff testified that he had no idea what
kind of liquid had caused his accident. Under these circumstances,
appellants were entitled to question plaintiff about the deposition
testimony in question, both for purposes of impeachment and to use the
prior inconsistent testimony as evidence-in-chief that the liquid was encapsulate" (id. at 410 [emphasis added]).

Unquestionably an affidavit tailored to avoid the consequences of a deposition lacks evidentiary value (see Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]). For example, in Concepcion v Walsh (38 AD3d 317,
318 [2007]) we stated that: "[w]hile plaintiff's mother's affidavit
asserts that there was peeling or chipping paint, her deposition
testimony was that she did not know; accordingly, her affidavit lacks
evidentiary value." Since plaintiff failed to submit documentary
evidence (other than her own self-serving statement) supporting her
claim that she resided in the Bronx when she commenced this action, and
since this case does not involve conflicting affidavits, there is no
need to hold a hearing as suggested by plaintiff and the dissent (see Martinez v Semicevic, 178 AD2d 228 [1991]; cf. Rivera v Jensen,
307 AD2d 229 [2003]). In this instance, the distinction the dissent
draws between formal and informal admissions is of no moment. This is
because plaintiff's deposition constituted the only evidence of plaintiff's place of residence albeit "some evidence" of same.

There is a fairly long dissent.  Worth reading.  Worth is a weird word.

Parker v Ferraro, 2009 NY Slip Op 02735 (App. Div., 1st, 2009)

Plaintiff's designation of New York County as the venue for this
action was proper, since corporate defendant's principal place of
business is located within that county (CPLR 503[c]; see Margolis v United Parcel Serv., Inc., 57 AD3d 371
[2008]). In order to obtain a discretionary change of venue under CPLR
510(3), "the moving party must provide detailed justification for such
relief in the form of the identity and availability of proposed
witnesses, the nature and materiality of their anticipated testimony,
and the manner in which they would be
inconvenienced by the initial venue" (Rodriguez v Port Auth. of N.Y. & N.J., 293 AD2d 325, 326 [2002]).

Defendants failed to meet this burden. In support of the motion,
defendants submitted, inter alia, an affidavit from defendant driver
Ferraro, "whose convenience [is] not a factor for consideration on the
motion" (Gissen v Boy Scouts of Am., 26 AD3d 289,
291 [2006]), and who failed to particularize his anticipated testimony.
It is further noted that in opposition to defendants' motion, plaintiff
submitted an affidavit from an eyewitness to the motor vehicle
accident, who stated that she was available to testify and would not be
inconvenienced by traveling to New York County.

CPLR § 503; § 510

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

Margolis v United Parcel Serv., Inc., 2008 NY Slip Op 09932 (App. Div., 2nd)

In this personal injury action involving a vehicular accident in Nassau
County, plaintiff properly placed venue in New York County based on the
location in that county of the corporate defendant's principal office (see
CPLR 503[c]). In seeking a discretionary change of venue pursuant to
CPLR 510(3), defendants failed to show that material nonparty witnesses
would be inconvenienced by testifying in New York County instead of
Nassau (see Martinez v Dutchess Landaq, Inc., 301 AD2d 424
[2003]). There was no evidence presented that any witness would be
inconvenienced by testifying in New York County. Furthermore, one
witness cited by defendants was defendant Ciaccio, who is both a party
and an employee of the corporate defendant, and another was an employee
of the corporate defendant who was not a witness to the accident.
Defendants did not identify the remaining police and medical witnesses,
did not explain the materiality of their testimony, and did not set
forth their willingness to testify or whether they had even been
contacted.

The bold is mine, all mine.  Bwahahahaha.