Category: CPLR R. 511

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)

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.

CPLR R. 511 Change of place of trial

CPLR § 501 Contractual provisions fixing venue

Tatko Stone Prods., Inc. v Davis-giovinzazzo Constr. Co., Inc., 2009 NY Slip Op 06210 (App. Div., 3rd, 2009)

We note first that, having raised the issue of improper venue as an
affirmative defense in the answer, Great American did not waive the
issue and could thereafter rely upon this defense in seeking dismissal
of the action (see Lischinskaya v Carnival Corp., 56 AD3d 116, 118 [2008], lv denied
___ NY3d ___ [June 30, 2009]). In addition, as Great American did not
follow the precise statutory procedures outlined under CPLR 511 (see CPLR 511 [a], [b]), the relief sought in its application became a discretionary matter (see Callanan Indus. v Sovereign Constr. Co., 44 AD2d 292, 295 [1974])^[FN1]. While Supreme Court may have erred in deciding the matter on subject matter jurisdiction grounds (see Matter of Lucchese v Rotella, 97 AD2d 645, 646 [1983], affd
60 NY2d 815 [1983]), we find that dismissal of the complaint was
nevertheless warranted based on the venue provision of the bond (see CPLR 501; see also Dogmoch Intl. Corp. v Dresdner Bank AG, 304 AD2d 396, 397 [2003]; Premium Risk Group v Legion Ins. Co., 294 AD2d 345, 345-346 [2002]; B & H Interior Contr. v Yonkers Contr. Co., 234 AD2d 44, 45 [1996]; Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d 803, 803-804 [1978]).

"It is well established that forum selection clauses are valid
absent a showing that enforcement would be unreasonable and unjust or
that the clause is invalid because of fraud or overreaching" (VOR Assoc. v Ontario Aircraft Sales & Leasing, 198 AD2d 638, 639 [1993] [citations omitted]; see Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]; Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764,
764-765 [2008]). Here, in seeking to enforce the bond as a third-party
beneficiary of it, plaintiff, in absence of any evidence of
unreasonableness, fraud or overreaching (compare 3H Enters. v Bennett, 276 AD2d 965, 966 [2000], lv denied 96 NY2d 710 [2001]), is bound by its forum selection provision (see B & H Interior Contr. v Yonkers Contr. Co., 234 AD2d at 45; Buhler v French Woods Festival of Performing Arts, 154 AD2d 303, 305 [1989]; Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d at 803-804; Callanan Indus. v Sovereign Constr. Co., 44 AD2d at 294; Khan Enter. Constr., Inc. v P & K Contr., Inc., 13 Misc 3d 1207[A] [2006]; Flush Metal Partition Corp. v Nuovo Corp., 57 Misc 2d 900, 901 [1968]; Frontier Excavating v St. Paul Fire & Mar. Ins. Co., 50 Misc 2d 232, 233 [1966]; see generally Harry Casper, Inc. v Pines Assoc., L.P.,
53 AD3d at 765). As plaintiff has advanced unpersuasive grounds upon
which this Court might disregard the forum selection provision in the
bond, we affirm dismissal of the action (see e.g. Dogmoch Intl. Corp. v Dresdner Bank AG, 304 AD2d at 397; Premium Risk Group v Legion Ins. Co., 294 AD2d at 346; British W. Indies Guar. Trust Co. v Banque Internationale A Luxembourg, 172 AD2d 234, 234 [1991]; Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 271-272 [1990]).

Particularly unpersuasive is plaintiff's claim that dismissal is
improper because Great American failed to demonstrate that the subject
bond was "properly authenticated." While it would have been preferable
for Great American to include the entire, properly-executed bond
agreement in its moving papers, we are unpersuaded that this omission
was fatal to the requested relief. First, there can be no real dispute
that a valid and enforceable surety bond exists; indeed, plaintiff is
relying upon it for relief in the first instance. More importantly,
Great American submitted an affidavit of a senior claims analyst who
averred that the subject bond contained a "venue provision" which
requires that this action be venued in New Jersey. The analyst attached
the relevant excerpt from a copy of the bond to his affidavit. This
evidence was sufficient for Great American to establish the precise
language of the subject forum selection clause.

A similar (sort of) issue popped up in the Second Department not too long ago.

The bold is mine.

CPLR § 510 Grounds for change of place of trial

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.