Plotkin Family Amagansett Trust v Amagansett Bldg. Materials, Inc.

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Plotkin Family Amagansett Trust v Amagansett Bldg. Materials, Inc. 2013 NY Slip Op 31805(U) August 5, 2013 Supreme Court, New York County Docket Number: 102296/10 Judge: Paul Wooten 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] SCANNED ON 81712013 I PAPERS NUMBERED Notice of Motion/ Order to Show Cause -Affidavits - Exhibits ... Answering Affidavits - Exhibits (Memo) ing Affidavits (Reply Memo) Cross-Motion: 0Yes I I I4 1,293 15 No Plotkin Family Amagansett Trust (Plotkin Trust or plaintiff) brings this action against defendants Amagansett Building Materials, Inc. (Amagansett) and Keiver-Willard Lumber Co. (Keiver-Willard) (collectively, defendants), in connection with plaintiff's purchase of allegedly defective Cypress d4s lumber (lumber) for use in the construction of a single-family home on plaintiff's property, located at 266 Marine Boulevard, Amagansett, Long Island, New York. Before the Court is a motion by Keiver-Willard for a change of venue, pursuant to CPLR 5s 510(1) and 51l(b) and (c), to transfer this action from New York County Supreme Court to Suffolk County Supreme Court on the grounds that the current venue is improper. Amagansett submits papers in support of Keiver's application. In opposition, plaintiff argues that New York County is the proper venue for the action under CPLR 503(b), as David R. Plotkin, co-trustee of Page 1 of 5 [* 2] ebruary 22, 201 0 in the New York Supreme Court, New York County. Plaintiff s ummons designates New York County as the place for trial and sets forth the basis for venue, rsuant to CPLR 503, is defendant s place of business (Keiver-Willard Affirmation in Support, ltaneously with its answer, Keiver-Willard served a Demand for a Change of from New York County to Suffolk County (see id., exhibit B; CPLR 51 1). In response to defendant s Demand for a Change of Venue, plaintiff submitted the affidavit of Jonathan L. Lerner (Lerner Affidavit) on August 27, 2012, pursuant to CPLR 51 l(b), advising that venue in the County of New York is proper based on Plaintiff s residence (see Plotkin Affirmation, exhibit C, n2). Despite the Lerner Affidavit, plaintiff s office was served with a Notice of Motion to Change Venue of trial on September IO,2012 (see Notice of Motion to Change Venue; see also Plotkin Affirmation, 77). Currently, before this Court is a motion by Keiver-Willard to change venue in this action from New York County Supreme Court to Suffolk County Supreme Court. In support of its application, Keiver-Killard asserts that contrary to the summons, venue cannot be established pursuant to CPLR 503(c), as neither defendant resides in New York County, nor did they reside in New York County at the time plaintiff commenced this action. Specifically, Keiver-Willard points out that its principle place of business is in Newburyport, MA, and Amagansett s principle place of business is in Suffolk County. Moreover, Keiver-Willard asserts that plaintiff failed to timely provide a sufficient affidavit setting forth facts that New York County is proper in accordance with the CPLR (Keiver Willard Affirmation, fi 7 7 , 14). In support of Keiver-Willard s application, Amagansett similarly asserts that venue in New York County is improper as neither defendant resides in New York County, which is undisputed by the plaintiff, and the complaint is Page2of 5 [* 3] asis for venue in this action due to a clerical error in the summons. The summons bases venue in New York County on defendant s place of business (CPLR 503[c]), instead of plaintiff s residence (CPLR 503[bJ). Plaintiff claims venue is pr David R. Plotkin, as set forth in the Complaint and Lerner Affidavit, was a resident of the County of New York at the time the complaint was filed (see Complaint, V I and V5; Plotkins Affirmation, exhibit C). Furthermore, plaintiff proffers that the basis for venue pursuant to CPLR 503(b) is supported by facts put forth in the complaint, including Plotkin s residence in New York County which the defendants had knowledge of by virtue of the allegations in the complaint. DISCUSSION CPLR 503 provides in relevant parts as follows: (a) Generally. Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced ... (b) Executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver. An executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver shall be deemed a resident of the county of his appointment as well as the county in which he actually resides. (c) Corporation. A domestic corporation, or a foreign corporation authorized to transact business in the state, shall be deemed a resident of the county in which its principal office is located; except that such a corporation, if a railroad or other common carrier, 1 The Court notes that in its Affirmation of Opposition, plaintiff seeks to amend the Summons in accordance with CPLR 305(c) in order to correct the discrepancy between the Summons and the Complaint. Although an affirmation in opposition is an improper vehicle by which to make such an application without a motion, the Court in its discretion will overlook this procedural error and allow plaintiff to issue an amended summons to correct this discrepancy (see CPLR 2001). Page3of 5 [* 4] so be deemed a res e court, upon motion, m he county designated The Court finds that venue should not be transferred t tiff, was a resident of New York County at the e action was commenced, per venue pursuant to CPLR 503(b) (see McNarnara v Penner, 123 NYS2d 576, 584 [Sup Ct, Oneida County, 19531 [ An administrator is entitled to elect whether action on decedent s estate will be instituted in county where administrator resides or in county of his appointment ]; Roman v Breteton, 182 AD2d 556 [ l s t Dept 19921 [ For purpose of deciding whether plaintiff s placement of venue in county was proper, controlling date was date of commencement of action, and trial court should have determined whether plaintiff maintained residence in county at that time]). Furthermore, Keiver-Willard s contention that venue was improper in New York County under CPLR 305(c) is unpersuasive, as plaintiff merely made a clerical error in the original Summons stating venue was proper due to defendant s principle place of business instead of co-trustee s place of residence (see CPLR 2001). Moreover, the original complaint affirmed that co-trustee of plaintiff had residence in New York County at the time the complaint was served, establishing proper venue under CPLR 503(b) (see Barron v Hadcox, 262 NYS2d 758, 759 [Sup Ct, Oneida County, 19651 [holding the complaint controls the place of venue when there exists a conflict between the complaint and the summons]). Therefore, the Court finds the complaint should control and venue is proper in New York County pursuant to CPLR 503(b). Accordingly, the defendant s motion to change venue to Suffolk County is denied and plaintiff is permitted to retain venue in New York County. Page 4 of 5 [* 5] ORDERED that plaintiff is directed to serve an amended Summons, consistent with this 0 days of Entry; and it is further, DERED that plaintiff is to serve a copy of this Order with Notice of Entry upon ts within 30 days of entry; and it is further, ORDERED that all parties are directed to appear for a preliminary conference at 11:OO tember 25, 2013 at New York County Supreme Court, 60 Centre Street, Room 341, NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE

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