Agresta v Environmental Temperature Sys. LLC

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Agresta v Environmental Temperature Sys. LLC 2012 NY Slip Op 33098(U) September 24, 2012 Sup Ct, New York County Docket Number: 100838/2012 Judge: Lucy Billings Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] - SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 44 Justice Index Number : 100838/2012 AGRESTA, FABRlZlO INDEX NO. vs. MOTION DATE ENVIRONMENTAL TEMPERATURE SEQUENCE NUMBER : 001 EXTEND TIME MOTION SEQ. NO. MOTION CAL. NO. _ . The following papers, numbered 1 to 3, were read on this motion tolfpf f w LIr(LMcu- PAPERS NUMBERED Notice of Motion/ Order ta Show Cause - Affidavits - Exhibits 1 .". Answering Affidavits - Exhibits a. Replying Affidavits 3 Yes Cross-Motion: I No FILED 3 I i JAN 0 4 2013 t NEW YORK oooNTY~cmccs0~ Dated: I -f - % i b JMIIL i i * Check one: FINAL DlSPOSlTlON Check if appropriate: DO NOT POST I / . . > . + . J. S. C. NON-FINAL DISPOSITION [* 2] c Index No. FABRIZIO AGRESTA, 100838/2012 Plaintiff - against - DECISION AND ORDER ENVIRONMENTAL TEMPERATURE SYSTEM LLC, Defendant f t i -F~LED - _ l _ _ _ _ _ _ _ l _ _ _ _ _ _ l _ _ _ _ l _ _ _ l _ l _ _ l _ _ _ LUCY BILLINGS, J.S.C.: JAN 04 2013 Defendant moves to extend its time to demand a c venue and to change the venue NWrnRU o !m m d a because plaintiff s designation of New York County is without basis. C.P.L.R. § § 510(1), 511(a) and ( b ) , Although plaintiff was injured in New York County due to defendant s alleged negligence and designated venue here, C.P,L.R.5 509, where plaintiff was injured is not a basis for venue. C.P.L.R. § 503. Since the only party that resides in New York is defendant, which maintains its principal place of business in Nassau County, venue would lie there. C.P.L.R. S 503(a) and (c). To change venue on that basis, defendant must serve to change venue before or with service of an answer. 511(a); Simon v. Usher, 17 N . Y . 3 d Conley Inc., 52 A . D . 3 d 218 a demand C.P.L.R. § 625, 628 (2011); Herrera v . R. (1st Dep t 2008); Kurfis v. Shore Towers Condominium, 48 A.D.3d 300 (1st Dep t 2008); Sinqh v. Becher, 249 A.D.2d 154 (1st Dep t 1998). Defendant then may move to change venue within 15 days after service of a demand to which agresta.144 1 [* 3] c plaintiff fails to respond. C.P.L.R. 5 5ll(b); Simon v. Usher, 17 N.Y.3d at 628; Banks v. New York State & Local Employees Retirement Svs., 271 A.D.2d 252 (1st Dep t 2000); Sinqh v. Eecher, 249 A.D.2d 154; Newman v. Phvsicians Reciprocal Insurers, 204 A.D.2d 210 (1st Dep t 1994). Defendant must strictly comply with these time requirements. Collins v. Greenwood Mqt. Corp., 25 A . D . 3 d 447, 449 (1st Dep t 2006); Banks v. New York State & Local Emplovees Retirement Sys., 271 A.D.2d 252; LaMantia v . North Shore Univ. HOSP., 259 A.D.2d 294 (1st Dep t 1999); Philoqene v. Fuller Auto Leasinq, 167 A.D.2d 178, 179 (1st Dep t 1990). Here, defendant served its answer March 23, 2012, and its demand to change venue March 26, 2012. Defendant acknowledges that its demand was untimely, but maintains that the court may extend the time for the demand and then consider the motion to change venue. The court s discretion regarding defendant s motion following an untimely demand to change venue, when based only on commencement of the action in a county outside C . P . L . R . 5 503,s scope, is limited to conformance with a contract provision regarding venue, policy dictates that place venue in another county, and consolidation. Newman v. Physicians Reciprocal I n s u r e r s , 204 A.D.2d 210; Pittman v. Maher, 202 A . D . 2 d 172, 175 (1st Dep t 1 9 9 4 ) . See Herrera v . R. Conley Inc., 52 A.D.3d at 219; Kurfis v. Shore Towers Condominium, 48 A.D.3d at 301; Howard v . New York State Bd. of Parole, 5 A.D.3d 271, 272 (1st Dep t agresta.144 2 [* 4] t 2004); Banks v. New York State 271 A.D.2d at 253. SYS., & Local Employees Retirement Otherwise the court may not grant the venue change when the demand was untimely. Herrera v. R . Conley Inc., 5 2 A.D.3d 218; N e w m a n v. Physicians Reciprocal Insurers, 204 A.D.2d 210; Pittman v. Maher, 202 A.D.2d a t 1 7 5 . Defendant does not claim that plaintiff misled defendant as to the propriety of the venue he selected, which would absolve defendant s failure to comply with the statutory time frames. Kurfis v . Shore Towers Condominium, 48 A.D.3d 300; Peretzman v. Elias, 221 A.D.2d 192 (1st Dep t 1995); Pittman v. Maher, 202 A.D.2d at 175; Koschak v. Gates Constr, Corp., 275 A.D.2d 3 1 5 , 316 (2d Dep t 1996). See Collins v . Greenwood Mqt. C o r p . , 2 5 A.D.3d at 449; LaMantia v. North Shore Univ. Hosp., 2 5 9 A.D.2d 294; Philoqene v . Fuller Auto Leasinq, 167 A.D.2d at 179. Rather than misleading defendants into believing venue was adequately premised, the complaint accurately and fully disclosed both parties residences and thus t h e lack of basis for the designated venue. Defendant s failure to follow the statutory procedure deprives defendant of its right to a change and preserves plaintiff s right to his choice of venue. C,P.L.R. §§ 509, 511(b); Herrera v . R. Conlev Inc., 52 A.D.3d 2 1 8 ; Kurfis v. Shore Towers Condominium, 48 A.D.3d 300; Collins v. Greenwood Mqt. C o r p . , 25 A.D.3d at 4 4 9 ; 5 A.D.3d Howard v. New York State Bd. of Parole, at 272. For these reasons, the court denies defendant s motion to agresta.144 3 [* 5] t h e change venue of t h i s action. C.P.L.R. § 5 l l ( b ) . This decision constitutes the court's o r d e r . DATED: September 2 4 , 2012 r q -f+% LUCY BILLINGS, J . S . C . JAN 0 4 agresta.144 4

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