Uruchima v Burns

[*1] Uruchima v Burns 2005 NY Slip Op 50157(U) Decided on February 14, 2005 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 14, 2005
Supreme Court, Kings County

LUIS URUCHIMA and RUTH URUCHIMA, Plaintiffs,

against

ALAN BURNS and HELEN BURNS, Defendants.



3484/04

Francois A. Rivera, J.

Defendants move for an order pursuant to CPLR '510 (1) changing the place of trial of this action from Kings County to Suffolk County Supreme Court. Plaintiffs oppose the motion and cross-move to retain Kings County as the venue for the action, or in the alternative, to transfer venue to Queens County.

On February 3, 2004, plaintiff commenced a cause of action for personal injuries by filing a summons and verified complaint with the Kings County Clerk's (hereinafter KCC) office. The complaint alleges that on November 6, 2003, Luis Uuchima was injured from a fall from a scaffold during construction work at defendants' home located at 664 Hands Creek, Town of Easthampton, County of Suffolk, State of New York.. Defendants were served with the summons and complaint at a veterinary hospital located at 411 Vanderbilt Avenue in Kings County. On or about May 21, 2004, defendants served plaintiff with an answer and a demand for a change of venue to Suffolk County. On May 24, 2004, plaintiffs notified the defendants that they would not consent to change of venue to Suffolk County and that they were rejecting defendants' answer as untimely. On July 8, 2004, defendants filed the instant motion filed. On July 19, 2004 defendants filed the instant cross motion.

By order of this court issued January 21, 2005, plaintiff's motion seeking a default judgment was denied and defendant's cross motion seeking an order compelling plaintiff to accept defendants' answer was granted. This left the question of venue as the only issue remaining.

Plaintiffs are residents of Suffolk County. Plaintiffs served the summons and complaint on defendants in Kings County where they contend defendants reside. However, defendants allege, by sworn affidavit, that they reside in Suffolk County and that Kings County is merely their place of business. In defense counsel's affirmation in support of the motion to change venue, counsel alleges that the defendants reside in both Suffolk and Queens County. [*2]

CPLR ' 501 through 508 generally sets forth the rules governing the correct choice of the place of trial. CPLR '503, captioned "venue based on residence", set forth the rules governing venue for different causes of action based on the residences of the parties. CPLR ' 510 sets forth the grounds for changing the place of trial and ' 511 sets forth the procedure for seeking the change. The place of trial or venue means the geographical subdivision in which an action may be brought and assumes that the chosen court already has both subject matter and personal jurisdiction.

A motion to change venue pursuant to CPLR ' 510(1) is premised on a claim that the venue chosen is improper. Its review requires that the court identify the underlying cause of action within one of four categories. The first is actions affecting interest in real property, known as local actions. The second is all other actions, popularly known as transitory actions. The third is an action to recover a chattel which the parties may elect to treat as local or transitory. The fourth is actions where the parties have contracted to a choice of venue, whether the action has been treated as local or transitory.

The case at bar is an action for personal injuries caused by a fall and is therefore transitory in nature and governed by CPLR '503(a).

CPLR '503(a) provides: 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; 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.

Actions brought in the wrong county contrary to CPLR '503(a) may be changed as of right. A defendant=s desire for a change of venue as of right must be commenced by first issuing a demand upon the plaintiff and absent acquiescence by plaintiff, by a motion filed with the court pursuant to CPLR ' 511(b).

CPLR ' 511 (b) provides:

Demand for change of place of trial upon ground of improper venue, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter, the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper.

CPLR '510 provides three grounds for changing the place of trial of an action. The court may change the place of trial because the county designated for that purpose is not a proper county; or there is reason to believe that an impartial trial cannot be had in the proper county; or

the convenience of material witnesses and the ends of justice will be promoted by the change. Only the first ground is considered a change as of right. The latter two grounds are discretionary (Morale v. La Grange Inn, Inc., 160 AD2d 783 [2nd Dept. 1990]; see also, O'Brien v. Vassar Brothers Hospital, 207 AD2d 169, 171 [2nd Dept., 1995]). [*3]

On May 21, 2004, defendants served the plaintiffs with a demand to change venue pursuant to CPLR §511(b). On July 8, 2004, defendants moved to change venue as of right to Suffolk County alleging that none of the parties resided in Kings County. Although defendants' motion was made more than fifteen days after service of a demand to change venue, plaintiffs waived the defect by not contesting the timeliness of the motion.

Plaintiffs provided no evidence to show that the Veterinary Hospital where defendants work and were they were served is their residence. Plaintiffs cross-motion attempts to shift the burden to the defendants by seeking proof that defendants actually reside in Queens County. That burden is not the defendants. Defendants burden is to show that plaintiffs did not have the right to designate Kings county as the venue of this action (City & Suburban Delivery System, Inc. v. Green 167 Misc 2d 283-at 285[ NY City Civ Ct. 1996] see also Bradley v. Plaisted 277 AD 620 [3rd Dept 1951]). Defendants motion papers have met this burden. The burden now shifts to the plaintiffs to show that Kings County was a proper choice of venue. They have failed to meet this burden.

Plaintiff's choice of venue was improper. Accordingly, plaintiffs have forfeited their right to select the place of venue (see Llorca v Manzo, 254 AD2d 396 [2nd Dept. 1998]). Defendants' motion to change venue to Suffolk County is granted.

The foregoing constitutes the decision and order of this court.

_______________________J.S.C.