Change of Venue, Convenience of Witnesses and Burdens of Proof
Print Article- Posted on: Apr 4 2025
The term “venue” in the context of litigation refers to the location where the trial will take place.[1] In general, and as previously described in prior articles, Venue, which is governed by Article 5 of the CPLR, is initially chosen by the plaintiff at the commencement of the action. Sometimes an improper venue is chosen by the plaintiff. In such circumstances, the defendant can move to change venue to a proper venue. CPLR 510(1); see also Kidd v. 22-11 Realty, LLC, 142 A.D.3d 499, 489 (2nd Dep’t 2016); Beli v. Lacqua, 212 A.D.3d 701 (2nd Dep’t 2023). Under other circumstances, the venue chosen by the plaintiff may be correct, but a different venue may be more convenient. Today’s article will focus on some issues related to the discretionary change of venue pursuant to CPLR 510(3), which provides that “[t]he court, upon motion, may change the place of trial of an action where … the convenience of material witnesses and the ends of justice will be promoted by the change.”
Motions pursuant to CPLR 510(3) “are addressed to the sound discretion of the trial court and, absent an improvident exercise of that discretion, the trial court’s order will not be disturbed on appeal.” Raghavendra v. Stober, 171 A.D.3d 814, 816 (2nd Dep’t 2018) (citations omitted); see also Aldridge v. Governing Body of Jehovah’s Witnesses, 204 A.D.3d 1469, 1470 (4th Dep’t 2022).
In cases where plaintiff’s initial choice of venue is proper, a discretionary change of venue based on the convenience of witnesses, pursuant to CPLR 510(3), will be granted “only after there has been a detailed evidentiary showing that the convenience of nonparty witnesses would in fact be served by the granting of such relief.” O’Brien v. Vassar Bros. Hosp., 207 A.D.2d 169 (2nd Dep’t 1995); see also Barresi v. Halls Boat, LLC, 217 A.D.3d 437 (1st Dep’t 2023). The O’Brien Court “review[ed] … the caselaw decided with reference to CPLR 510(3) and its antecedents [and found] that there is a general consensus among appellate courts as to the existence, if not as to the absolute rigidity and inexorability, of four criteria which should be established by the movant in order to demonstrate his or her entitlement to relief pursuant to CPLR 510(3).” O’Brien, 207 A.D.2d at 172. The O’Brien criteria are as follows: (1) “the affidavit in support of a motion under this section must contain the names, addresses and occupations of the prospective witnesses”; (2) “a party seeking a change of venue for the convenience of witnesses is also required to disclose the facts to which the proposed witnesses will testify at the trial, so that the court may judge whether the proposed evidence of the witnesses is necessary and material”; (3) “the moving party must show that the witnesses for whose convenience a change of venue is sought are in fact willing to testify”; and, (4) “there must be a showing as to how the witnesses in question would in fact be inconvenienced in the event a change of venue were not granted.” O’Brien, 207 A.D.2d at 172–73 (citations, internal quotation marks and ellipses omitted); see also Jacobs v. Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 A.D.3d 299 (1st Dep’t 2004); Corner of Walnut LLC v. Tompkins Ins. Agencies, Inc., 225 A.D.3d 465 (1st Dep’t 2024). The absence of affidavits, and/or detail in submitted affidavits, satisfying the O’Brien criteria for changing venue is fatal to a discretionary motion under CPLR 501(3). 10 Two Trees Lane LLC v. Mahoney, 192 A.D.3d 468, 469-70 (1st Dep’t 2021).
In Barresi, supra, for example, the Court determined that the defendant failed to meet its burden of demonstrating that a change of venue was warranted because the affidavits of potential witnesses “merely set forth brief and vague descriptions of the witnesses’ proposed testimony [and, accordingly,] were insufficient to show that the testimony would be material and relevant to the issue of defendant’s liability and damages. Barresi, 217 A.D.3d at 438 (citations omitted). In Jacobs, supra, the motion was denied because defendants failed to “indicate that they had contacted the nonparty witnesses, much less identify the specific inconveniences which might be incurred by the witnesses, and such inadequacies render defendants’ moving papers insufficient as a matter of law.” Jacobs, 9 A.D.3d at 300 (citations omitted).
On April 3, 2025, the Appellate Division, First Department, in Nir v. Wakeford, unanimously reversed the grant of defendant’s motion to change venue. Nir, an action based on a sexual assault and brought under the Adult Survivors Act (CPLR 214-j), was properly brought in New York County, the county of the plaintiff’s residence. CPLR 503(a). The defendant moved to change venue based on the convenience of witnesses. In support of his motion to change venue, the defendant argued that because the assault occurred in Suffolk County “most material witnesses will be located there.” Four such material witnesses identified by defendant’s counsel allegedly lived and worked in Suffolk County. The Court noted that counsel “contacted only two of those witnesses directly, and he failed to show that the two witnesses who were not contacted would be inconvenienced.” (Citations omitted.) In addressing the proof submitted by the parties in support of, and in opposition too, the motion, the Court stated:
As to one of the witnesses whom counsel contacted, he failed to assert that the witness stated he would be inconvenienced by having to testify in New York County. As to the other witness who was contacted, a detective in Suffolk County, defendant’s counsel averred that the witness stated he would be inconvenienced by having to testify in New York County. In opposition, plaintiff’s counsel averred that she spoke to the detective, who denied ever making that statement and, instead, told her that, while it would be easier to testify in Suffolk County, it would not be a burden to testify in New York County. The mere fact that the courthouse is in a different county does not give rise to a presumption that a witness will be inconvenienced. Contrary to defendant’s contention, the fact that the witnesses are police officers does not negate the argument that distance alone is insufficient to justify a change of venue.
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This Blog has written several articles about venue. See, e.g., [here],[here] and [here].
