Holmes v Davis

[*1] Holmes v Davis 2005 NY Slip Op 50471(U) Decided on March 24, 2005 Supreme Court, Bronx County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2005
Supreme Court, Bronx County

Ellen Holmes, Plaintiff(s),

against

David L. Davis, JR., Defendant(s).



23084/04

Nelson S. Roman, J.

Defendants moves seeking an order pursuant to CPLR §§510 and 511 changing the venue of this action from Bronx County to Federal Court in either of the states within which the parties currently reside. It is alleged that pursuant to CPLR §503, the venue herein is improper. It is alleged that since neither of the parties reside within New York, the action should be venued in Federal Court. Plaintiff opposes the motion asserting that the action is venued properly because pursuant to CPLR §503, plaintiff, as a non-resident at the time the action was commenced, had the option of designating venue. As such plaintiffs assert that venue is proper. Moreover, for purposes of Federal jurisdiction, plaintiff asserts that the proper procedure would have been a removal of this action to Federal Court pursuant to 28 U.S.C. §1446(b)[FN1]. However, the time for that, plaintiff alleges has passed.

For the reasons that follow hereinafter, defendant's motion is hereby denied.

This case involves a motor vehicle accident in New York state. At the time of the accident, plaintiff was a resident of New York and defendant a resident of New Jersey. The action was commenced on September 29, 2004 and issue was joined when defendant interposed an answer on January 5, 2005. Along with an answer defendants served a demand to change venue. To date said demand has gone unanswered. The instant motion was made on January 5, 2005. According to the summons and complaint, plaintiff is a resident of Florida and defendant is a resident of New Jersey. Based on the summons, Bronx County was designated as the venue for this action because pursuant to CPLR §503, plaintiff had the right to choose the venue herein.

Venue

[*2]All things being equal, a transitory action should be tried where the cause of action arose. Clark v. New Rochelle Medical Center, 170 AD2d 271 (1st Dept. 1991); Kim v. Flushing Hospital and Medical Center, 138 AD2d 252 (1st Dept. 1988). Article 5 of the CPLR fixes the venue of certain actions based on a host of different factors, such as the type of action, the residence of the parties or the status of the party being sued. CPLR §503 prescribes venue in transitory actions based on the residence of the respective parties. CPLR §504 prescribes venue in actions against municipalities. CPLR §505 prescribes venue in actions involving public authorities. CPLR §510 sets forth the grounds for changing the venue of a particular action and CPLR §511 sets forth the procedure for seeking the change. CPLR §510 sets out three grounds warranting a change of venue.

CPLR §510(1) provides for a change of venue when the county designated is improper. A defendant seeking to challenge the chosen venue on grounds that said venue is improper must first comply with the requisites of CPLR §511, which requires that a demand to change venue be interposed with or prior to the service of an answer. Jason v. Dumel, 3 Misc 3d 1101(a) (Supreme Court, Kings County 2004). Thereafter, pursuant to CPLR §511, plaintiff must either agree to change the venue or interpose an affidavit indicating why the venue chosen is proper and why the proposed venue is improper. An action brought in the wrong county requires a venue change as a matter of right. Id. However, before such relief can be had, defendant is required, as mentioned above, to comply with CPLR §511. Id. When a defendant makes a motion seeking to change the venue pursuant to CPLR §510(1), the court must first determine, given the type of action, what venue provision governs and what constitutes proper venue. Uruchima v. Burns, 6 Misc 3d 1022(A) (Supreme Court, Kings County 2005). Thereafter, it is defendant's burden to establish that given the type of action, the venue chosen was improper. Id. Plaintiff must demonstrate that the venue chosen was proper. Id.

Venue changes pursuant to CPLR §§510(2) and (3), are not changes granted as a matter of right; instead such venue changes are left to the sound discretion of the Court. Id.; O'Brien v. Vassar Brothers Hospital, 207 AD2d 169 (2nd Dept. 1995). Such venue changes do not require that defendant serve a demand to change venue pursuant to CPLR §511. On a motion to change venue pursuant to CPLR §510(3), where it is alleged that the convenience of the witnesses would best be served by the change, a party must satisfy several factors. O'Brien v. Vassar Brothers Hospital, 207 AD2d 169 (2nd Dept. 1995). First, the moving party must provide the names, addresses, and occupations of all prospective witnesses. Id. Second, the facts about which said witnesses will testify must be disclosed so the court can ascertain whether said witnesses are material and necessary. Id. Third, it must be demonstrated that the witnesses are willing to testify. Id. Lastly, it must be shown how the witnesses would be inconvenienced absent the change in venue. Id. A failure to meet the requirements outlined warrants denial of the motion to change venue. Id.

A plaintiff forfeits the right to select the venue in an action if said plaintiff chooses an improper venue in the first instance. Kelson v. Nedicks Stores, Inc., 194 AD2d 315 (1st Dept. 1984). Furthermore, plaintiff's failure to respond to a defendant's demand to change venue, supports a transfer of the case to the venue selected by defendant. Lynch v. Cyprus Sah & Dorr Co., Inc., 272 AD2d 260 (1st Dept. 2000). [*3]

Venue in personal injury transitory actions is governed by CPLR §503. Uruchima v. Burns, 6 Misc 3d 1022(A) (Supreme Court, Kings County 2005); Jason v. Dumel, 3 Misc 3d 1101(a) (Supreme Court, Kings County 2004). When venue is chosen pursuant to CPLR §503, it is assumed that the court in the venue chosen has both subject matter and personal jurisdiction. Id.

While it appears that a motion pursuant to CPLR §503(3) will be denied unless movant meets the burden articulated above, it appears that a court will at times exercise its discretion and change the venue of an action even if the case was properly venued to begin with. Kim v. Flushing Hospital and Medical Center, 138 AD2d 252 (1988). In Kim, the court granted a change of venue, where it was determined that the venue was proper when the case was commenced. Id. In Kim, the court reasoned that since the case no longer had a nexus to the county of venue, circumstances warranted a change of venue. Id. In Kim, the plaintiff ultimately moved to another county other than the one where the case had been venued. Id. In cases where venue has been chosen based on defendant's place of business rather than the county of occurrence, this court has consistently granted motions to change the venue of the action to the county of occurrence. Id.; Ford v. Servistar Corporation, 133 AD2d 23 (1st Dept. 1987); Siegel v. Greenberg, 85 AD2d 516 (1st Dept. 1981). In Ford, it was clear that venue was properly chosen based on defendant's place of business. However, the court reasoned that the action ought to have been tried in the county of occurrence. Ford v. Servistar Corporation, 133 AD2d 23 (1st Dept. 1987). Moreover, in Wilson v. Sponable, 77 AD2d 799 (4th Dept. 1980), the court held that since CPLR §510(3) allows the court to consider whether the change in venue promotes the "ends of justice," the court is free to consider other factors in deciding whether to change venue.

Discussion

Because this accident occurred in New York and neither parties where residents when the action was commenced, plaintiff was correct in designating Bronx County as the proper venue pursuant to CPLR §503(a). Since this is a personal injury transitory action, venue is governed by CPLR §503(a) which states

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. (Emphasis added)

Thus, plaintiff could have chosen any county as venue. Defendant's challenge of the venue herein is unavailing since he fails to specify in what way the venue designation is improper. Given the facts herein, venue is completely proper. Defendant asserts that the court does not have personal or subject matter jurisdiction over this action or the parties herein. This however, is unavailing. Clearly the court has subject matter jurisdiction to hear this personal injury action accruing within this state. With respect to personal jurisdiction, the court has personal jurisdiction pursuant to CPLR §302(a)(2), because the allegation is a tortious act committed within state by a non-domiciliary. Defendant's motion is hereby denied. The Court need not address whether defendant should have instituted a removal procedure to Federal Court pursuant to 28 U.S.C. §1446(b). It is hereby [*4]

ORDERED that plaintiff serve a copy of this order with notice of entry upon plaintiffs within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated :March 24, 2005

Bronx, New York ________________________________Nelson S. Roman, J.S.C.Footnotes

Footnote 1: Plaintiff in error cited to 42 U.S.C. §1446(b).