Excel Realty Partners, LLP v Jembro Stores of Stewart, Inc.

[*1] Excel Realty Partners, LLP v Jembro Stores of Stewart, Inc. 2007 NY Slip Op 52445(U) [18 Misc 3d 1107(A)] Decided on December 13, 2007 Supreme Court, Nassau County Austin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2007
Supreme Court, Nassau County

Excel Realty Partners, LLP, Plaintiff,

against

Jembro Stores of Stewart, Inc., and Joseph Beyda, Defendants.



07-009776



Counsel for Plaintiff

Goldson Nolan Connolly Nasis & Dornfeld, PC

145 Marcus Boulevard

Suite 4

Hauppauge, NY 11788

Counsel for Defendant

Kreinik Associates LLC

275 Madison Avenue

36th Floor

New York, NY 10016

Leonard B. Austin, J.

Excel Realty Partners, LLP ("Excel") is a foreign limited liability partnership authorized to do business in the State of New York. Partnership Law § 121-1504; and Limited Liability Company Law § 802. In its application for authority to conduct business within the State of New York, Excel designated New York County as the location of its principal place of business.

Jembro is a domestic corporation. Jembro's certificate of incorporation designates New York County as its principal place of business. Business Corporation Law § 402. Beyda is an individual who resides in Kings County. Beyda is an officer of Jembro.

Excel served its Amended Summons and Verified Complaint on the Defendants on July 31, 2007. In the Amended Summons, Plaintiff designated Nassau County as the venue of the trial. Excel premised venue of the action upon the Defendants' place of business.

On August 17, 2007, Defendants served a Demand for Change of Venue on the ground that the county designated by Excel is improper. The demand was made pursuant to CPLR 511(a), which requires demands for a change of venue be served with or before the answer. In their demand, Defendants demanded that the venue be changed to the County of New York. Plaintiff never responded to the Defendants' demand for change of venue. Accordingly, Defendants move to change venue.

DISCUSSION

Plaintiff may designate venue in any county in which any party to the action resides. CPLR 503. In the case at bar, Plaintiff designated Nassau County as the place of trial. Venue was premised on Defendants' place of business in Nassau County. CPLR 503(c).

Plaintiff's designation of venue in Nassau County is improper. The sole residence of a domestic corporation for venue purposes is the county designated as its principal place of business in its certificate of incorporation with the Department of State, even if the corporation maintains offices in another county. Hamilton v. Corona Ready Mix, Inc., 21 AD3d 448 (2nd Dept. 2005); and Graziuso v. 2060 Hylan Blvd. Restaurant Corp., 300 AD2d 627 (2nd Dept. 2002). See also, Siegel, New York Civil Practice 4th § 119.

For purposes of determining venue, the residence of a foreign corporation or partnership is based upon the principal place of business designated in its application for authority to conduct business within the State of New York. Ashjian v. Orion Power Holdings, Inc., 9 AD3d 440 (2nd Dept. 2004); and Collins v. Trigen Energy Corp., 210 AD2d 283 (2nd Dept. 1994).

In the case at bar, no party resides in Nassau County. Both Excel and Jembro have designated the location of their principal places of business in New York County. Accordingly, Excel and Jembro are both residents of New York County for purposes of venue. Therefore, if venue is based upon Jembro's principal place of business as stated by Plaintiff in its Amended Summons, the action should have been brought in New York County.

Additionally, Beyda resides in Kings County. Thus, Kings County would also have been an appropriate venue under CPLR 503. In sum, venue is proper in either New York or Kings [*2]Counties, but not in Nassau County.

By selecting an improper county, Plaintiff forfeited its right to designate venue of this matter. Ruiz v. Lazala, 26 AD3d 266 (2nd Dept. 2006); and Greenberg v. Kruse, 23 AD3d 347 (2nd Dept. 2005). Under such circumstances, Defendants may obtain a change of venue by following the procedures found in CPLR 511.

These procedures require the defendant serve a demand to change venue either with the answer to the complaint or before the answer is served. CPLR 511(a). The demand shall indicate the county which the defendant asserts is proper. CPLR 511(b). The statute provides that within five (5) days of service of the demand, plaintiff can either serve a written consent to change venue to the county designated by the defendant or serve an affidavit stating why the county chosen by plaintiff is correct and the county designated by defendant is not. Siegel, New York Practice 4th § 123. If plaintiff refuses to consent to change of venue or fails to respond to the demand, as Excel has done here, the defendant must move within fifteen days to change venue. CPLR 511(b). If defendant follows the statutory procedures and the county selected by plaintiff is improper and the county designated by Defendant is proper, venue should be changed to the county designated by the defendant. Id.

Defendants have complied with the procedural requirements of CPLR 511, and are therefore entitled to change of venue as a matter of right. As both Excel and Jembro are corporations with their principal place of business in New York County, the County of New York is proper and the motion will be granted.

Accordingly, it is,

ORDERED, that Defendants' motion for change of venue from Nassau County to New York County is granted; and it is further,

ORDERED, that the Nassau County Clerk, upon service of a copy of this order with Notice of Entry and payment of the required fees, is directed to transfer its file in this action to the New York County Clerk for filing and assignment to a Commercial Division part.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY____________________________

December 13, 2007Hon. Leonard B. Austin, J.S.C.