Goldberg v ELRAC, Inc.

[*1] Goldberg v ELRAC, Inc. 2005 NY Slip Op 52260(U) [10 Misc 3d 1079(A)] Decided on November 22, 2005 Supreme Court, Kings County Martin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 22, 2005
Supreme Court, Kings County

Hayley B. Goldberg et al., Plaintiffs,

against

ELRAC, Inc., d/b/a Enterprise Rent-a-Car, et al., Defendants.



23203/04

Larry D. Martin, J.

Upon the foregoing papers, defendant ELRAC, Inc. d/b/a Enterprise Rent-A-Car (ELRAC) moves for an order, pursuant to CPLR 510 (3), changing the place of trial of this action from Kings County to Dutchess County on the ground that the convenience of witnesses and the ends of justice will be promoted by such change. Defendant Bracha Goldberg cross-moves for an order, pursuant to CPLR 3211 (a) (8), dismissing the action as against her for lack of personal jurisdiction.

Background

On August 5, 2001, the infant plaintiff, Hayley B. Goldberg, was struck by a vehicle while sitting in the parking lot of an establishment located in the town of Red Hook, [*2]Dutchess County, New York.[FN1] From the record, plaintiffs are residents of Ontario, California.

The offending vehicle was owned by ELRAC and had been rented to non-party Dena Laber pursuant to a rental agreement entered into in upstate New York.[FN2] ELRAC is incorporated in Delaware and has its principle place of business in New Jersey. Ms. Laber's address is listed on the rental agreement as upstate New York.

It appears from the record that Ms. Laber was somehow associated with defendant Machon Chana Women's Institute, Inc. (Machon). Machon is located in Kings County but, at all times relevant, allegedly also owned and maintained a religious camp or retreat located in upstate New York.

Defendant Chana Miriam Lieder was employed by Machon as a camp counselor and had allegedly been granted use and possession of the vehicle by Machon on the incident date. According to the complaint, Ms. Lieder is a resident of San Diego, California.

At the time of the accident, the vehicle was allegedly being operated by defendant Bracha Goldberg, a resident of Kings County and, at that time, an infant (14 years old). It is alleged that, prior to striking the infant plaintiff, Bracha Goldberg also operated the subject vehicle so as to cause it to collide with a parked vehicle owned by non-party John Patrick Allen. Mr. Allen was sitting in his vehicle at the time and witnessed the accident. He lives in or near Dutchess County. Non-party Robert Hatch was also present in the parking lot at or shortly following the incident. Mr. Hatch lives in or near Dutchess County.

The matter was investigated by several members of the Dutchess County Sheriff's Office (including one or more deputies and a detective), who, inter alia, reported to the scene, interviewed and took the written depositions of witnesses, and prepared a police accident report and a subsequent report.

An investigation of this incident was also apparently conducted by or on behalf of the Dutchess County Attorney. However, the criminal court file regarding the then-infant, Bracha Goldberg, is presently sealed, pending determination of a motion to a Dutchess County court for an unsealing order.

Thus far, ELRAC is the only defendant which has made a formal appearance for purposes of challenging the merits of the action against it.

The Motion

Plaintiffs designated venue in Kings County based upon one of the defendants' (Machon's) place of business.

ELRAC moves for a change of venue on the grounds of forum non conveniens (i.e., that the convenience of witnesses and the ends of justice will be promoted by the change of [*3]venue to Dutchess County).

Plaintiffs oppose ELRAC's motion on the grounds that at least two of the defendants (Machon and Bracha Goldberg) are located in Kings County; Mr. Hatch is not a material witness; since Bracha Goldberg's criminal court file has not yet been unsealed, the police witnesses are, at this point, only possible witnesses; and plaintiffs are willing to stipulate to the contents of the police reports.

A motion made pursuant to CPLR 510 (3) for a change of venue on the grounds of convenience of witnesses is addressed to the sound discretion of the court, whose "determination will not be disturbed on appeal unless the court failed to consider all of the relevant factors" (Wentzel v Allen Machinery, Inc., 277 AD2d 446, 447 [2000]; Tonioli v Hilbert, 1 Misc 3d 912[A] [2004]; see also Rodriguez v Wilson, 201 AD2d 636 [1994]; Gennaro v Grossfeld, 186 AD2d 718 [1992]; Levenstein v Parks, 163 AD2d 367, 368 [1990]; Weisemann v Davison, 162 AD2d 448 [1990]; Morale v La Grange Inn, Inc., 160 AD2d 783, 784 [1990]). "Rough equality of factors in favor of both counties will not warrant a reversal of the trial court's exercise of discretion" in fixing venue (Cole v Lawas, 97 AD2d 912 [1983]).

The "movant bears the burden of demonstrating that the convenience of witnesses would be better served by the change" in venue (Alvarez v D & K Construction, Inc., 221 AD2d 224, 225 [1995]) and is required to set forth: (1) the names, addresses and occupations of the prospective witnesses who will be inconvenienced; (2) "the facts to which the proposed witnesses will testify at trial, so that the court may judge whether the proposed evidence of the witnesses is necessary and material"; (3) that the proposed witnesses are, in fact, willing to testify; and (4) "how the witnesses in question would in fact be inconvenienced in the event a change of venue were not granted" (O'Brien v Vassar Brothers Hospital, 207 AD2d 169, 172-173 [1995]; see also Dores v New York Medical Group, P.C., 259 AD2d 297 [1999]; Levenstein, 163 AD2d at 368; Weisemann, 162 AD2d at 448; Chimarios v Duhl, 152 AD2d 508, 509 [1989]; Alexandre v Pepsi-Cola Bottling Co., Inc., 150 AD2d 742 [1989]; Greene v Hillcrest General Hospital, 130 AD2d 621 [1987]; Tonioli, 1 Misc 3d at 912).

ELRAC provides, in support of its motion, affidavits setting forth the names and business or residential addresses of its potential witnesses, most of whom live and/or work in Dutchess County and confirming the proposed witnesses' willingness to testify in this action. ELRAC's affidavits further relate that said witnesses, who were either present during the incident or investigating officers thereof, will testify to matters relevant and material to this action and concerning the facts, circumstances and operation of the subject vehicle during the critical period.

ELRAC expects to prove, by this evidence, that the vehicle was, at the time of the accident, being operated by the then-minor, Bracha Goldberg, without ELRAC's permission and authority and pursuant to or in conjunction with an unauthorized endeavor by Ms. Lieder to teach one or more of the camp's attendees to drive a vehicle. ELRAC's affidavits also inform the court that Dutchess County is located approximately two and one-half hours from [*4]Kings County and that these prospective witnesses would be either severely inconvenienced or unable to give evidence in this action due to such inconvenience, if a change in venue were not granted.

ELRAC additionally presents evidence that police reports and investigation files pertinent to this matter are located in Dutchess County and that the Dutchess County Sheriff's Office would be severely inconvenienced were its investigating deputies and/or detectives compelled to appear in Kings County for a trial of this matter. Further, ELRAC argues a lack of substantial nexus of this matter to Kings County, since the vehicle was rented in upstate New York; the accident occurred in Dutchess County; Machon has a place of business not only in Kings County, but also in upstate New York, which place of business appears to have a more substantial or direct connection to the incidents at hand; and no defendant (including the two who allegedly reside in Kings County), other than ELRAC, has appeared in this lawsuit to contest the merits of the action as against them (see Shedrick v Asplundh Tree Expert Co., 278 AD2d 49 [2000]; see also Cheggour v R'Kiki, 293 AD2d 507 [2002] [situs of underlying action is factor to be considered in deciding motion to dismiss on ground of forum non conveniens]; Wentzel, 277 AD2d at 447 [same]; Dawson v Seenardine, 232 AD2d 521 [1996] [defendant's residence, standing alone, insufficient to merit retention of jurisdiction in New York]; Jackson v Maas, 121 AD2d 860 [1986] [absence of substantial nexus]).

Finally, although the congestion of the court calendar is never dispositive in venue decisions, it is an appropriate matter for consideration (see Morgulas v Yudell Realty, Inc., 161 AD2d 211, 214 [1990], citing A.M.I. International, Ltd. v Gary Pool Sales & Service, Inc., 94 AD2d 890 [1983]; Creed v United Hospital, 158 AD2d 654, 655 [1990]; Thomas v Small, 121 AD2d 622, 624 [1986]). Here, the court is on notice that the court calendar in Dutchess County, from filing of the note of issue to trial, is significantly less congested than in Kings County, thus promoting the ends of justice by affording the litigants a speedier trial (Thomas, 121 AD2d at 624).

ELRAC has, by this collective evidence, met its burden and shown that, with respect to this action resulting from a vehicular accident in Dutchess County, there is no overriding nexus to Kings County, the convenience of non-party witnesses and interest of justice would, in fact, be met by a change of venue and the court's exercise of discretion in this area is warranted (see Shedrick, 278 AD2d at 49; Phelan v Budget Rent-A-Car Systems, Inc., 239 AD2d 204 [1997]; Chimirri v Evergreen America Corp., 211 AD2d 743 [1995]; Tricarico v Cerasuolo, 199 AD2d 142, 143 [1993]; Serraino v Cauthen, 199 AD2d 63 [1993]).

Plaintiffs were, accordingly, required to make a showing that venue in Kings County is preferable to Dutchess County (see Alvarez, 221 AD2d at 225 ["a plaintiff who has designated a proper venue is under no obligation to make a showing that the county designated is in any way preferable to the one to which the change is sought, unless and until the party seeking the change has made an adequate showing as to the convenience of material witnesses and the furtherance of justice"]).

Notably, plaintiffs fail to assert in their opposition papers that they or their witnesses [*5]would be inconvenienced by a change of venue, and that they would be equally or any more inconvenienced by a trial in Dutchess County than defendants would be inconvenienced by a trial in Kings County (see Phelan, 239 AD2d at 204). In fact, the Kings County residents have not yet appeared herein to challenge the substantive merits of the action against them.

Plaintiffs further fail to demonstrate the alleged non-materiality of Mr. Hatch's proposed testimony, and their remaining arguments, including that they are willing to stipulate to the contents of the police reports,[FN3] are, in light of ELRAC's showing, insufficient to warrant denial of the motion for a change of venue (see McGuire v General Electric Co., 117 AD2d 523 [1986]).

Based upon movant's showing and under the circumstances of this matter, including that Dutchess County contains a great preponderance of the material records and witnesses, and is where the convenience of those witnesses would be best served, the court finds it warranted that venue of this action be changed to Dutchess County, as it is the most appropriate county for trial thereof.

The Cross Motion

Plaintiffs concede that defendant Bracha Goldberg was at all times relevant an infant over the age of fourteen (14), but that plaintiffs failed to fully comply with the requirements of CPLR 309 (a) regarding service of process upon an infant defendant by failing to effectuate personal service of process upon the infant's parent or natural guardian. The action must, accordingly, be dismissed as against Bracha Goldberg for failure to comply with CPLR 309 (a) (see Kolodzinski v Ferreiras, 168 AD2d 431, 431-432 [1990]; State Bank of Albany v Murray, 27 AD2d 627, 628 [1966]; Krieger v Krieger, 198 Misc 450, 451 [1950]).

The court has considered and rejected as being without merit plaintiffs' arguments against dismissal, including that Bracha Goldberg has now reached the age of majority and, to avoid an alleged waste of judicial resources, the court should ignore the service defect or allow plaintiffs to correct the defect without refiling.

In the matters relied upon by plaintiffs, the infant was personally served and those courts found that the failure to complete service upon the infant's parent or natural guardian prior to trial of the action did not require dismissal of the action, but only necessitated additional service upon the parent (see e.g. Catalano v Ramage, 110 NYS2d 45 [1951]; Ward v Ward, 136 Misc 234 [1930]).

Here, however, plaintiffs used "substituted" service - - what is commonly known as the "affix and mail" method of service (see CPLR 308 [4]) - - as against the then-infant (see Lella v Holman, 166 Misc 796 [1938]) such that the failure to effectuate proper service pursuant to CPLR 309 (a) resulted in the court having acquired no jurisdiction, and "any judgment or order against the defendant would be void" (Krieger, 198 Misc at 451-452; see [*6]also Soto v Soto, 30 AD2d 651 [1968]).

Conclusion

Based upon all of the foregoing, defendant ELRAC's motion is granted to the extent that a change of venue of this action from Kings County to Dutchess County is hereby ordered.

The Clerk of this court is directed, upon service of a copy of this order with notice of entry and payment of the appropriate fee, if any, to transfer all papers on file in this action and certified copies of all minutes and entries herein, if any, to the Clerk of the Supreme Court, Dutchess County (see CPLR 511 [d]).

The cross motion is granted and the complaint dismissed as against defendant Bracha Goldberg.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Plaintiffs Rhonda and Samuel Goldberg, the infant's parents and natural guardians, are suing derivatively for the loss of the infant's society and companionship and for future expenses.

Footnote 2:Elka Park, in the Catskills, New York.

Footnote 3:Even if ELRAC were also willing to so stipulate, there is no indication that any of the other defendants, against whom these reports are presumably most damaging, would be so willing.