Rental Co. of NY v Tsafos

[*1] Rental Co. of NY v Tsafos 2023 NY Slip Op 50424(U) Decided on May 3, 2023 Civil Court Of The City Of New York, Bronx County Crawford, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2023
Civil Court of the City of New York, Bronx County

The Rental Company of NY, Plaintiff,

against

Ioannis Tsafos, Defendant.



Index No. CV-006629-22/BX


Nightingale Law, P.C., by Michael S. Nightingale, Esq., for the Plaintiff

Law Offices of John Trop, by Sarah Martinez, Esq., for the Defendant
Ashlee Crawford, J.

Plaintiff The Rental Company of NY alleges that it rented a 2015 Mercedes-Benz Sprinter to defendant Ioannis Tsafos, and that the vehicle was involved in an accident while being operated in a negligent manner by either defendant or a third-party with defendant's consent. Plaintiff asserts a claim against defendant for negligence and breach of the parties' vehicle rental agreement, and seeks $6,878.03 for the damage caused to the vehicle.

Complaint

In the complaint, plaintiff alleges that: (i) its principal place of business is in New Hyde Park, New York (Nassau County); (ii) defendant resides in Garrison, New York (Putnam County); (iii) defendant rented the subject vehicle from plaintiff's New Hyde Park office; and (iv) this Court has jurisdiction over this matter because plaintiff transacts business in Bronx County (Compl. ¶¶ 1-5). Furthermore, the rental agreement appended to the complaint lists plaintiff's New Hyde Park office as its business address (id. at Ex. 1).

Motion to Change Venue

Defendant moves pursuant to CPLR §§ 510 and 511 to transfer this matter from Bronx County to Putnam County, arguing that Bronx County is an improper venue for this matter for various reasons. Defendant maintains that the cause of action did not arise in the Bronx, citing that neither plaintiff nor defendant reside in Bronx County; the accident occurred in Putnam [*2]County; defendant resides in Putnam County; and plaintiff's principal place of business is in Nassau County. Defendant further argues that plaintiff has forfeited its right to select the place of venue by selecting an improper venue in the first instance.

In opposition, plaintiff insists that Bronx County is the proper venue for this case. While plaintiff alleges in the complaint that defendant rented the vehicle from plaintiff's New Hyde Park location (Compl. at ¶ 5), plaintiff submits an affidavit of its employee, Maria Garcia, in opposition to the motion, wherein Garcia states that defendant in fact rented the vehicle from plaintiff's Bronx dispatch office located at 602 Fordham Road (Garcia Aff. at ¶ 3).[FN1] After the accident, Garcia states, plaintiff's tow-truck driver picked up the vehicle from an unidentified location and brought it to plaintiff's Bronx office for repair (id at ¶ 5). Plaintiff argues that it would be a hardship to bring material witnesses — such as the tow-truck driver, the employee who dispatched the rented vehicle from Bronx County, and the mechanic who repaired the vehicle — to Putnam County (id. at ¶ 8). Plaintiff does not identify these individuals by name, or indicate whether they are willing and available to testify, or specify why travelling to Putnam County to testify would impose a hardship on them.

Discussion

CPLR § 503(a) provides that venue for "trial shall be in the county in which one of the parties resided when [the action] was commenced [or] the county in which a substantial part of the events or omissions giving rise to the claim occurred." The residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county (id.; see Addo v. Melnick, 61 AD3d 453 (1st Dept. 2009).

CPLR § 510 provides that "[t]he court, upon motion, may change the place of trial of an action where: (1) the county designated for that purpose is not a proper county; or . . . (3) the convenience of material witnesses and the ends of justice will be promoted by the change." On a motion to change venue under CPLR § 510(1), defendant's burden is limited to establishing that the designated county is improper (Garced v. Clinton Arms Assoc., 58 AD3d 506, 509 [1st Dept. 2009]).

Here, defendant has met his burden of establishing that Bronx County is not a proper venue for this action pursuant to CPLR § 510(1), because neither party resides in Bronx County [FN2] (see IME Watchdog, Inc. v. Baker, McEvoy, Morrissey & Moskovits, P.C., 145 AD3d 464, 465 [1st Dept. 2016]; Herrera v. R. Conley Inc., 52 AD3d 218, 218 [1st Dept. 2008]). Given plaintiff's choice of an improper venue in the first instance, the Court finds that plaintiff forfeited the right to select the venue. As such, venue is properly placed in Putnam County, where defendant resides (Weiss v Wal-Mart Stores East, LP, 83 AD3d 461, 461-62 [1st Dept 2011]).

It should be noted that defendant did not meet his burden for a discretionary transfer of venue pursuant to CPLR § 510(3). "[A] defendant seeking a change of venue under CPLR 510(3) must make a detailed evidentiary showing that the nonparty witnesses will, in fact, be [*3]inconvenienced absent such relief" (10 Two Trees Lane LLC v Mahoney, 192 AD3d 468, 469 [1st Dept 2021]). "The affidavit of the moving party under CPLR 510(3) must (1) contain the names, addresses, and occupations of witnesses expected to be called; (2) disclose the facts upon which such witnesses are expected to testify, in order that the court may determine whether such witnesses are material and necessary; (3) demonstrate that such witnesses are willing to testify; and (4) show that the witnesses would be inconvenienced absent a change in venue" (id.). Defendant failed to make the foregoing evidentiary showing under CPLR 510(3) and, therefore, his application under that prong fails (Tawiah v McNiff, 193 AD3d 559 [1st Dept 2021]["The presumption that a witness will be inconvenienced merely because the courthouse is in a different county is unwarranted, and while the county of occurrence is a factor to be considered, defendants still had the burden of showing the inconvenience that would be sustained by the witnesses if required to testify in Bronx County"]; Sanchez v 1 Burgess Road, LLC, 169 AD3d 605 [1st Dept 2019]; cf. Gentry v Finnigan, 110 AD3d 568, 569 [1st Dept 2013]).

Accordingly, it is hereby

ORDERED that that part of defendant's motion to change venue pursuant to CPLR § 510(1) is GRANTED, and in all other respects is denied; and it is further

ORDERED that this matter is hereby transferred to Putnam County.

This constitutes the decision and order of the Court.

_________________________________
HON. ASHLEE CRAWFORD, J.C.C.

Dated: Bronx, New York
May 3, 2023 Footnotes

Footnote 1:According to Garcia, the rental occurred entirely via telephone and facsimile (Garcia Aff. at ¶ 4).

Footnote 2:The Court takes judicial notice of plaintiff's certificate of incorporation, which designates Queens County as plaintiff's county of residence.