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  • Posted on: Dec 18 2020

Venue in litigation is where the trial of an action will take place.  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 and other times, while correct, a more convenient venue is available.  This BLOG has previously addressed “Change of Venue Procedures.”  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).

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).  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).  

Where a proper showing is not made, courts will not hesitate to deny a motion.  Fitzsimons v. Brennan, 128 A.D.3d 634, 636 (2nd Dep’t 2015) (citations omitted) (“the defendants failed to offer sufficient proof of the addresses of [potential witnesses], the facts to which the [witnesses] would testify, whether the [witnesses] would be willing to testify, and that the [witnesses] would be inconvenienced if venue was not changed.  The defendants also provided the names of fire and police officers and first responders, without providing the current addresses of those individuals, or the basic details which would be the subject of their anticipated testimony.”)

Interestingly, a motion to change venue pursuant to CPLR 510(3) may be made by a plaintiff.  Article 5 of the CPLR contains provisions indicating where certain types of actions shall proceed.  For example, CPLR 507 provides that actions affecting title to real property “shall be in the county in which any part of the subject of the action is situated” and CPLR 504 provides the venue for “the place of trial of all actions against counties, cities, towns, villages, school districts and district corporations or any of their officers,  boards or departments.”  Accordingly, a plaintiff may be forced, in the first instance, to bring an action in a venue designated by Article 5 of CPLR.  However, plaintiff’s initial venue may be inconvenient for witnesses.  Such was the case in Xhika v. Rocky Point Union Free School Dist., 125 A.D.3d 646 (2nd Dep’t 2015), where plaintiff initially commenced the action in Suffolk County Supreme Court as required by CPLR 504 (because the defendant was a school district), but moved to change venue to Kings County.  The Xhika Court noted that “despite the seemingly unforgiving language of the statute, venue may be changed to a non-mandated county upon a showing of special circumstances.”  Xhika, 125 A.D.3d at 647 (citations and internal quotation marks omitted).)  Consistent with such a finding, the Xhika Court granted the motion to change venue and held that that plaintiff made the requisite showing that treating physicians and eyewitnesses would be inconvenienced if the trial took place in Suffolk County.  Xhika, 125 A.D.3d at 647.  Conversely, the defendant failed to “assert that any of its employees witnessed the accident” and “failed to establish that any of its trial witnesses would be inconvenienced by traveling to Kings County.”  Xhika, 125 A.D.3d at 647-48.

It is important to note that the convenience of “the parties, their employees, and their experts is not relevant to determination of a change of venue under CPLR 510(3).”  Leake v. Constellation Brands, Inc., 112 A.D.3d 792 (2nd Dep’t 2013) (citations omitted); see also, Joseph v. Agnant, 262 A.D.2d 226 (1st Dep’t 1999).

On December 15, 2020, the First Department decided Manchanda Law Office PLLC v. Marin, in which plaintiff sought a de novo review of an attorney fee dispute arbitration.  In affirming the change of venue from New York County to Albany County, the Court noted that “[d]efendant supported the motion with affidavits from three witnesses based in Albany County, which showed that they are available and willing to testify on behalf of the movant, the nature of their testimony and the manner in which it is material to issues raised in the case, and the manner in which they would be inconvenienced if required to travel to New York County” and that in opposition, plaintiff failed to identify “factors that would justify retention of venue in New York County, such as by showing that any, let alone the preponderance of, the material nonparty witnesses to the fee dispute are located in there.” (Citation omitted.)

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