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CHANGE OF VENUE PROCEDURES

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  • Posted on: Aug 23 2019

The location of the place of trial ( or venue) of a legal proceeding in New York State is the location where the action is brought.  The plaintiff, as the party bringing the proceeding, generally gets to choose, in the first instance, venue.  Plaintiffs, however, do not always choose a proper venue (“Improper Venue Selection”).  In such instances, a defendant has an opportunity to change the Improper Venue Selection to a proper one.  See CPLR 510 (1).  Other times, although venue is proper, a defendant (or even a plaintiff) may seek a change based on considerations such as the convenience of witnesses and/or potential prejudice to a party should the action proceed in the venue chosen by the plaintiff (a “Discretionary Change”).  See CPLR 510 (2) and (3).

There are specific procedures that must be employed to, and certain circumstances under which a party may, change venue.  The purpose of this post is to briefly outline some of those basic procedures.

CPLR 503(a) provides that:

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;  the county in which a substantial part of the events or omissions giving rise to the claim occurred;  or, if none of the parties then resided in the state, in any county designated by the plaintiff.  A party resident in more than one county shall be deemed a resident of each such county.

Notwithstanding the general provisions of CPLR 503(a), the CPLR specifies proper venues for particular types of actions.  See CPLR 504, 505, 506, 507, 508 and 509. For example, the proper venue for an action affecting title to real property is in the County where “any part of the subject of the action is situated.”  CPLR 507.  Similarly, courts will enforce contractual venue provisions.  See CPLR 501; Casale v. Sheepshead Nursing & Rehab. Center, 131 A.D.3d 436, 437 (2nd Dep’t 2015) (“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” (citations and quotation marks omitted).)

The procedure to follow when a plaintiff makes an Improper Venue Selection is set forth in CPLR 511.  Pursuant to CPLR 511, a defendant that believes a plaintiff selected an improper venue must serve a written demand (a “Demand”) to change the place of trial to a county deemed proper by the defendant.  CPLR 511(a) and (b).  The Demand must be served “with the answer or before the answer is served.”  CPLR 511(a).     If, within 5 days of defendant’s service of a Demand the Plaintiff does not serve written consent to change venue to the place specified in the Demand, the Defendant has 15 days from service of the Demand to move to change the place of trial to the venue set forth in the Demand.

In Coluck Inc. v. SEM Sec. Sys,. Inc., decided by the Appellate Division, Second Department on August 21, 2019, the Court reversed the grant of a motion to change venue based on an Improper Venue Selection as “untimely since no demand to change venue was served with the answer or before the answer was served,” although the Court did note that under “certain limited circumstances” an untimely motion to change venue can be granted by a court in the “exercise [of] its discretion.”  Coluck at *1 (citations omitted).  The Coluck Court cited to Philogene v. Fuller Auto Leasing, 167 A.D.2d 178 (1st Dep’t 1990), for the proposition that in “limited circumstances” a court might grant an untimely Improper Venue Selection motion.  In reversing the trial court’s denial of the Philogene defendant’s motion on timeliness grounds, the First Department stated:

Thus, since neither defendant is a New York County resident and plaintiff at all relevant times has resided in Staten Island, Richmond is the proper county for venue. A change of venue sought as of right on the ground that the county selected is an improper one must be sought by service of a demand (CPLR 511 [a]) followed by a motion, if the demand is not acceded to, within 15 days after service thereof (CPLR 511 [b]). Noncompliance with the statutory time requirements should not act as a bar where, as here, a plaintiff’s willful omissions and misleading statements regarding his residence are the cause of such noncompliance and the defendant moves promptly after ascertaining the true state of affairs. Here, defendants’ motion for a change of venue — made the day after they ascertained plaintiff’s residence — could not have been made more promptly.

Philogene, 167 A.D.2d at 178 – 79.

The Court in Deas v. Ahmed, 120 A.D.3d 750 (2nd Dep’t 2014), in deciding a motion under CPLR 510(1), stated:

In order to prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff’s choice of venue is improper, and also that the defendant’s choice of venue is proper. To succeed on his motion here, the defendant was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in Kings County. Only if the defendant made such a showing would the plaintiff have been required to establish, in opposition, that the venue that he selected was proper.

Deas, 120 A.D.3d at 750-51 (citations omitted).  In denying the Deas defendant’s motion, the Court  found that the requisite burden was not met because defendant relied on plaintiff’s residence as set forth in a police report of the subject accident, which “failed to demonstrate that the plaintiff did not maintain a residence in Kings County at the time the action was commenced, more than two years after the accident.”  Deas, 120 A.D.3d at 751 (citations omitted).

The most typical scenario for a Discretionary Change is based on the convenience of witnesses.

A party moving for a discretionary 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. In so doing, the moving party must set forth (1) the names, addresses, and occupations of the prospective witnesses, (2) the facts to which the witnesses will testify at trial, so that the court may judge whether the proposed evidence is necessary and material, (3) a statement 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.

Coluck at *2 (citations and internal quotation marks omitted).

In Jansen v. Bernhang, 149 A.D.2d 468 (2nd Dep’t 1989), the Court reversed the denial of a Discretionary Change motion.  After setting forth a list of criteria similar to that of the Coluck Court, the Jansen Court stated:

Here, the movants’ papers suffice to demonstrate that at least three prospective witnesses live in New York County whose testimony is material and necessary with respect to the issue of whether or not the plaintiffs performed their contractual duty to make periodic inspections during the alterations to the defendants’ apartment in New York County to see that the work generally conformed to the construction documents. Moreover, it is apparent from the record that the majority of triable issues pertain to the parties’ respective claims which arose from the contract made in New York County and providing for its performance in New York County. Absent cogent reasons to direct otherwise, venue should be in the county where the cause of action arose.

Jansen, 149 A.D.2d at 469 (citations omitted).

In Walsh v. Mystic Tank Lines Corp., 51 A.D.3d 908 (2nd Dep’t 2008), the Court affirmed the denial of a motion for a Discretionary Change due to the inadequacy of defendant’s moving papers, and, in so doing, stated:

Here, the defendants identified seven potential nonparty witnesses, contending that their convenience would be served by a change of venue from Queens County to Suffolk County. Each witness submitted an affidavit which contained his or her name, address, occupation, and county of employment (where applicable). Then, in identical language, each affiant stated that he or she (1) had “personal knowledge of the facts and circumstances” concerning the motor vehicle accident, (2) was willing to testify, and (3) would be “great[ly] inconvenience[d]” if venue remained in Queens County.

The defendants’ motion papers were not sufficient to justify a discretionary change in venue. The affidavits by the potential nonparty witnesses failed to disclose the nature of their anticipated testimony. In other words, the affidavits did not contain the basic detail necessary to ascertain whether the affiants would be material witnesses.

Walsh, 51 A.D.3d at 908-09.

TAKEAWAY

There are many reasons why a party may seek to challenge a plaintiff’s venue selection.  If the proper procedures are not followed, or if a party’s motion does not set forth all of the necessary information, courts have no qualms about denying such motions.

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