Arrow Restoration, Inc. v Super Touch Restoration Corp.
Annotate this CaseDecided on September 6, 2006
Supreme Court, New York County
Arrow Restoration, Inc. and Admiral Insurance Co., Plaintiffs,
against
Super Touch Restoration Corp., Utica First Insurance Company and Mount Vernon Insurance Company, Defendants.
600434/2006
Rosalyn Richter, J.
The motion by defendants Super Touch and Utica First to change the venue of this action from New York County to Oneida County Supreme Court is granted and the cross-motions by defendant Mount Vernon Insurance Company and by plaintiffs to retain venue of this action in New York County or, in the alternative, to transfer the case to Kings County are denied. There is no question that, as a matter of law, venue for this action does not lay in New York County because none of the parties maintains a place of business in this County. Indeed, the summons itself does not state that any of the defendants do business here, but rather claims that venue is based on the fact that the underlying personal injury action is pending here. In any event, the cross-motions contend that venue, even if not legally required in New York County, should remain here because witnesses would be inconvenienced if the case were transferred to Oneida County, as requested by Super Touch and Utica First.
It is well settled that having chosen an improper venue in the first instance, plaintiffs have forfeited their right to select the venue of this action. Fisher v. Finnegan-Curtis, 8 AD3d 527 (2d Dept. 2004); Lynch v. Cyprus Sash & Door Co., Inc., 272 AD2d 260 (lst Dept. 2000); Grizzel v. F.M. Transmix Corp., 172 AD2d 802 (2d Dept. 1991). In any event, (t)he proponent of a motion to transfer venue pursuant to CPLR 510(3) must demonstrate that the convenience of material witnesses would be served by the change.'" Rodriguez-Lebron v. Sunoco, Inc., 18 AD3d 275 (lst Dept. 2005), quoting Cardona v. Aggressive Heating, 180 AD2d 572 (1st Dept. 1992). Here, the only specific witness whose affidavit is offered in support of the cross-motions is Ms. Christi Rosario, who works for GAB, the third party administrator for plaintiff. Ms. Rosario alleges that the files related to the underlying building collapse are located in the New York office of GAB, that she is the adjuster assigned to the claims against Arrow Restoration, Inc. arising from the building collapse and that she cannot travel to Oneida County for trial. She does not indicate, however, that she has any personal knowledge of the issues relating to this insurance coverage declaratory judgment action and it appears from her testimony that she [*2]essentially is a custodian of the records relating to these claims.
Furthermore, she does not explain exactly why she cannot travel to Oneida or that GAB, which essentially is plaintiffs' representative in this matter, would not compensate her for her time and travel expense. Indeed, because Ms. Rosario could appropriately be considered an agent of the plaintiff, she may not be a person whose convenience the Court should even consider in deciding the appropriate venue for this action. Gissen v. Boy Scouts of America, 26 AD3d 289 (lst Dept. 2006).
The cross- motions do not provide the names of any other witnesses who would be inconvenienced by transfer of this action to Oneida nor is there any indication of what these witnesses might testify to. Such detailed information is essential to a motion of this type, and provides an additional basis for denying the relief sought in the cross-motions. See Shindler v. Warf, 24 AD3d 429 (2d Dept. 2005); see also Rodriguez-Lebron v. Sunoco, Inc., 18 AD3d 275 (lst Dept. 2005). The mere fact that the building collapse occurred here does not, as a matter of law, require the coverage action to be venued here. Indeed, the cross-motions do not explain exactly why testimony from the witnesses
in the building collapse would even be needed in this declaratory judgment action. As counsel for
Super Touch and Utica First correctly note the policy was issued by an entity based in Oneida County. Thus, it is incorrect to suggest that this action has no connection to that county. Indeed, those witnesses would be inconvenienced if they had to travel to New York County to testify.
Oquendo v. Nationwide Ins. Co., 270 AD2d 174 (lst Dept. 2000), can be distinguished from the instant case. In Oquendo, the plaintiff offered affidavits from an eyewitness to the accident and from the surgeon who treated plaintiff indicating that they could not travel to Onondaga County. Furthermore, the Appellate Division opinion indicates that plaintiff identified several other non-party witnesses who were based in the Bronx, the County where the action was filed. In contrast, here, the cross-motions identify only one specific witness, who may be an agent of a party, who will have to travel to testify if the case is moved to Oneida.
No persuasive reason exists to place venue in Queens or Kings County. No claim has been made that a significant number of witnesses are in those counties, but rather it appears to Ms. Rosario would simply prefer not to travel upstate and would be willing to travel the shorter distance to Queens or Kings if the case was moved from New York County.
It is therefore ORDERED that the venue of this action is changed from this Court to the Supreme Court, County of Oneida, and the Clerk of this Court is directed to transfer the papers on file in this action to the Clerk of the Supreme Court, County of Oneida, upon service of a copy of this order with notice of entry and payment of appropriate fees, if any.
Sept. 6, 2006Justice Rosalyn Richter
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