Pennsylvania Manufacturers' Assn. Ins. Co. v Liberty Mut. Ins. Co.
Annotate this CaseDecided on April 25, 2006
Supreme Court, Westchester County
Pennsylvania Manufacturers' Association Insurance Company, Plaintiff,
against
Liberty Mutual Insurance Company, Defendant.
4347/06
Jaffe & Asher, LLP
Attys. For Defts.
600 Third Avenue
New York, New York 10015
Chelus, Herdzik, Speyer, Monte & Pajak, P.C.
Attys. For Pltf.
1000 Main Court Building
Buffalo, New York 14202
Mary H. Smith, J.
This is a declaratory judgment action in which plaintiff contends that defendant owes a duty to defend and indemnify plaintiff for a prior global settlement of four actions, which included claims for wrongful death. On March 2, 2006, defendant timely served upon plaintiff a demand pursuant to CPLR 511, subdivision (b), for a change of venue of this action from Erie County to Westchester County. In response thereto, plaintiff timely served a purported "Affidavit in Opposition to Defendant's Demand for Change of Place of Trial." Defendant now is moving for an Order changing the venue to Westchester, arguing that no party is a resident of Erie County and thus this action improperly is venued in Erie County. See CPLR 503, subdivision (a). Moreover, defendant contends that the purported "Affidavit" served by plaintiff in response to defendant's Demand to Change Venue is of no legal consequence, not only [*2]because it is "an unsworn statement" but because it fails to set forth facts demonstrating that Erie County is proper and Westchester County improper. In support of its motion to transfer venue to Westchester County, defendant avers that although its principal place of business is Boston, Massachusetts and it has numerous offices throughout Erie County, it has three offices in Westchester County and if it were required to file a statement regarding where its principal place of business is located, it would respond that it is in Westchester County. See CPLR 503, subd. (c). Accordingly, defendant submits that since plaintiff has selected an improper venue for this action, defendant is entitled to an Order transferring same to Westchester County.
Plaintiff vigorously opposes the motion, arguing that this Court does not even have jurisdiction to entertain the motion, which instead should be heard in Erie County since plaintiff timely had served an affidavit demonstrating that venue in Erie County was proper. See CPLR 511, subd. (b). According to plaintiff, defendant's objection to the substance of plaintiff's served Affidavit in Opposition to defendant's Demand For a Change of Venue is without merit insofar as the Affidavit set forth allegations tending to support plaintiff's choice of the place of trial and opposing the demanded change of venue, including that defendant's principal place of business is in Boston, that none of the potential witnesses in this action are located in Westchester County, that defendant has numerous offices located through Erie County, that the underlying accident occurred in Erie County, that the Court of Claims trial in the underlying action took place in Erie County and that the settlement of the underlying action was negotiated in Erie County.
Even were this Court to entertain the motion, plaintiff argues that defendant has failed to establish that venue in Erie County is improper since foreign insurance companies, such as the parties at bar, are exempt from having to designate a principal place of business and where, as here, they have not designated any county in New York as their principal place of business, an action may properly be venued in any county where it maintains an office.
Were plaintiff's served "Affidavit" in response to defendant's Demand For a Change of Venue in fact an affidavit, defendant's motion would be denied without prejudice to renewal in Erie County, as the Court finds that at bar would be an instance where plaintiff had served an affidavit containing averments tending to support plaintiff's choice of the place of trial and opposing the demanded change of venue. See Quinn v. Stuart Lakes Club, Inc., 53 AD2d 775 (3rd Dept. 1976); United National Bank v. Ettinger, 51 AD2d 736 (2nd Dept. 1976); Chuttick v. Collins, (2nd Dept. 1964); 20 AD2d 640 Ludlow Valve Mfg. v. Silberblatt, Inc., 14 AD2d 291 (1st Dept. 1961).
However, the purported "Affidavit" was in fact not notarized. Moreover, while an attorney of course has the privilege of using an affirmation, see CPLR 2106, here the statement served by plaintiff's counsel's, while including the statement that he, "being duly sworn deposes," critically fails to also include the required statutory language "under the penalties of perjury." Since plaintiff's attorney's served statement is found to not be in proper form, necessarily, defendant's Demand For a Change of Venue must be deemed unanswered. In this circumstance, defendant's motion for a change of venue in this Court not only is proper, see Rubens v. Fund, 23 AD3d 636 (2nd Dept. 2005), but supported by the lack of proper opposition. See Lynch v Cyprus Sash & Door Co., 272 AD2d 260 (1st Dept. 2000).
Venue is predicated upon the residence of one of the parties at the time it was commenced. CPLR 503, subd. (a). The residence of a corporation is determined by CPLR 503, [*3]subdivision ), which provides, as is relevant here, that "a foreign corporation authorized to transact business in the state, shall be deemed a resident of the county in which its principal office is located." Case law further instructs, however, that the location of a corporation's principal office is determined solely by the designation in its certification of incorporation, see Cottone v. Real Estate Industrials, Inc., 246 AD2d 572 (2nd Dept. 1998); Panco Dev. Corp. v. Platek, 262 AD2d 292 (2nd Dept. 1999), irrespective of whether it maintains offices in another county. See Graziuso v. 2060 Hylan Blvd. Restaurant Corp., 300 AD2d 627 (2nd Dept. 2002).
However, both parties herein being foreign insurance companies, they are exempt from having to file a certificate of incorporation and/or designate a principal place of business. See Insurance Law §§ 7, subd. 1(d),40,42; Business Corporation Law § 1304(a)(4). At least one lower court has determined that as long as a foreign insurance company maintains an office in a county, that county is proper for venue purposes. See General Acc. Fire & Life Assur. Corp. v. Allcity Ins. Co., 53 Misc 2d 596 (Sup. Ct. Nass. Co. 1967). In sum, this Court finds that defendant has not sustained its burden of showing that plaintiff did not have the right to designate Erie County as the venue of this action. Cf. Providence Washington Ins. Co. v. Squier Corp., 31 AD2d 514 (1st Dept. 1968).
Dated: April 25, 2006
White Plains, New York________________________
MARY H. SMITH
J.S.C.
APPEARANCES OF COUNSEL:
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