K.M., Jr. v City of New York

[*1] K.M., Jr. v City of New York 2007 NY Slip Op 52218(U) [17 Misc 3d 1131(A)] Decided on November 19, 2007 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2007
Supreme Court, Kings County

K.M., Jr. an Infant over the Age of 14 years by K.M., Sr., Plaintiff,

against

City of New York, Defendant.



10464/07



Plaintiff was represented by Mark I. Goldstein, Esq. of Goldstein & Goldstein. Defendant was represented by Rachel Donohue, Esq. of the Corporation Counsel of the City of New York.

Jack M. Battaglia, J.

On October 31, 2006, Plaintiff was allegedly arrested at 167 Ada Drive in Richmond County.On March 27, 2007, Plaintiff served a Summons and Complaint upon defendant City of New York, alleging claims of, among other things, false arrest, false imprisonment, malicious prosecution and assault. Defendant interposed its Answer on April 30, 2007. On May 30, 2007, Defendant interposed an Amended Answer with a Demand and Stipulation to Change Venue to Richmond County. Plaintiff never signed the Stipulation to Change Venue. On July 25, 2007, Defendant filed the instant motion to change venue to Richmond County from Kings County.

CPLR 504(3) provides that the place of trial of all actions against the City of New York shall be "in the county within the City in which the cause of action arose . . ." CPLR 504 "is couched in mandatory terms and, absent compelling countervailing circumstances, should be complied with, since its purpose is to protect public officers from inconvenience and, therefore, it is to be given more than ordinary consideration.'" (See Rogers v U-Haul Co., 161 AD2d 214, 215 [1st Dept 1990] [quoting Powers v East Hudson Parkway Auth., 75 AD2d 776, 777 (1st Dept 1980)]; see also Chetrick v Cohen, 266 AD2d 254, 254 [2d Dept 1999].)

Since all of the events giving rise to Plaintiff's alleged causes of action took place in Richmond County, the only proper venue would be Richmond County. (See Bustillo v City of New York, 201 AD2d 395, 395 [1st Dept 1994].)

CPLR 511(a) provides that a demand for change of place of trial on the ground that the county designated for that purpose is not a proper county shall be served with the answer or before the answer is served. CPLR 511(b) provides that: [*2] "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."

Here, Defendant served a demand for a change of venue with its Amended Answer on May 30, 2007, without seeking leave of court pursuant to CPLR 3025. Even so, Plaintiff accepted the City's Amended Answer and, as such, the City's demand for a change of venue is deemed to have been timely served. (See Nassau County v Incorporated Village of Roslyn, 182 AD2d 678, 679 [2d Dept 1992]; Boro Kitchen Cabinets, Inc. v Spalt, 9 AD2d 925, 925 [2d Dept 1959]).

It is undisputed that Plaintiff never signed a stipulation to change venue to Richmond County, and Defendant failed to move to change the venue within the required fifteen days of service of its demand to change venue. As such, to the extent that Defendant's motion is treated as one to change venue on the ground that Plaintiff's choice of venue was improper, it is untimely under the statute. (See Obas v Grappell, 43 AD3d 431, 431 [2d Dept 2007]; Horowicz v RSD Transportation, 249 AD2d 511, 511 [2d Dept 1998]; Pittman v Maher, 202 AD2d 172, 174 [1st Dept 1994].)

"When such motion is untimely it is addressed to the court's discretion rather than based on right." (See Horowicz v RSD Transportation, 249 AD2d at 511; Matter of D.M.C. Construction Corp v A. Leo Nash Steel Corp., 70 AD2d 635, 653 [1st Dept 1979]; Fitzpatrick v Sullivan, Magee and Sullivan, Inc., 49 AD2d 902, 902 [2d Dept 1975].) A motion to change venue addressed to the discretion of the court must be considered on the grounds specified in CPLR 510(2) and (3) (see Matter of D.M.C. Construction Corp v A. Leo Nash Steel Corp., 70 AD2d at 653), which are that "there is reason to believe that an impartial trial cannot be had in the proper county" and "the convenience of material witnesses and the ends of justice will be promoted by the change" (see CPLR 510[2] and [3].)

Defendant does not contend or submit any evidence that an impartial trial cannot be had in Kings County. (See CPLR 510[2].)

To obtain a change of venue under CPLR 510(3) on grounds that the convenience of material witnesses and the ends of justice will be promoted by the change of venue, a movant must meet four criteria. (See O'Brien v Vasser Brothers Hosp., 207 AD2d 169, 172 [2d Dept 1995].) Movant must submit an affidavit (1) "containing the names, addresses and occupation of the prospective witnesses" (id.); (2) "disclose the facts to which the proposed witnesses will testify at the trial, so that the court may judge whether proposed evidence of the witnesses is necessary and material" (id.); (3) "show that the witnesses for whose convenience a change of venue is sought are in fact willing to testify" (id. at 173); and (4) demonstrate "how the witnesses in question would in fact be inconvenienced in the event a change of venue were not granted" (id.)

Contrary to the City's contentions, a movant must make such a showing even where, as here, [*3]Plaintiff designates venue in an improper county in violation of specific venue rules. (See e.g. Cruz v City of New York, 251 AD2d 364, 365 [2d Dept 1998] [defendant City's motion to change venue pursuant to CPLR 510 in the court's discretion was denied based upon inadequate showing even though Plaintiff designated an action against the City in a county other than where the cause of action arose in violation of CPLR 504]; see also Charles v New York City Tr. Auth., 277 AD2d 194, 195 [2d Dept 2000].)

Here, Defendant does not even attempt to make any showing with respect to CPLR 510(3). Rather, Defendant contends that "the convenience of paramedic, fire and police personnel who responded to the scene of the accident are given priority over that of plaintiff's treating physicians and family members." Without providing any of the required information regarding its proposed witnesses, Defendant also states that "[t]he preponderance, and possibly all, of the City's witnesses are, on a daily basis, located in Richmond County." Defendant's general and conclusory allegations are clearly insufficient to establish the grounds necessary for a discretionary change of venue. (See e.g. Cruz v City of New York, 251 AD2d at 365; compare Kennedy v C.F. Galleria at White Plains, L.P., 2 AD3d 222 [1st Dept 2003].)

Defendant alleges no wrongdoing or improper motive in Plaintiff's bringing this action in Kings County (see Obas v Grappell, 43 AD3d 431 [2d Dept 2007]; Koschak v Gates Constr. Corp., 225 AD2d 315, 316 [1st Dept 1996]; Pittman v Maher, 202 AD2d 172 [1st Dept 1994]), but it requires no depth of social perception to suspect that a plaintiff in a police misconduct action might anticipate a more receptive forum in Kings County than in Richmond County. Neither party argues that public interests require that allegations of police misconduct be resolved either within, or outside, the communities in which the events occurred. Under such circumstances and on this record, unless the Court reads sections 510 and 511 out of the CPLR and ignores implementing caselaw, no discretion appears to send this action to Richmond County.

Accordingly, Defendant's motion must be denied.

November 19, 2007

__________________

Jack M. Battaglia

Justice, Supreme Court