Opinion
3500804
Decided April 4, 2005.
Upon the foregoing papers, defendants Penny Papreka, Red Hook Antique Center (Red Hook) and Paula Golden move for an order, (1) pursuant to CPLR 507, 510 (1) and (3) and 511, changing the place of trial of plaintiff's first and second causes of action from Kings County to Columbia County and Dutchess County, respectively, and staying this action pending the venue change, and (2) pursuant to CPLR 3211 (a) (5) and (a) (7), 3013, 3016 and/or 3024 (a), summarily dismissing plaintiff's sixth, seventh and eighth causes of action or, in the alternative, changing the place of trial of those causes of action from Kings County to Columbia or Dutchess County. Plaintiff cross-moves for an order, pursuant to CPLR 3025, 3211 (f) and/or 3217, granting plaintiff leave to amend her complaint to withdraw any and all causes of action insofar as asserted against defendants Red Hook and Golden.
The parties have consented to plaintiff's voluntary withdrawal of her third, fourth and fifth causes of action and the court, accordingly, does not consider or determine herein so much of defendants' motion as seeks a change of venue with respect to those causes of action.
Plaintiff has withdrawn so much of her cross motion as sought an order, pursuant to 22 NYCRR 520.11, granting Keith Diamond, Esq., admission pro hac vice to the Supreme Court, Kings County, for purposes of assisting plaintiff's representation in this litigation.
Background
Plaintiff Shari Diamond alleges a long-term domestic partnership relationship, now dissolved, between herself and defendant Papreka and a specific oral or other agreement between her and Papreka that all property acquired by them during the relationship would be jointly and equally owned.
Plaintiff commenced this action seeking the partition of, and declaratory relief as to her ownership interest in, four items of real property, one located in Kings County, one in Dutchess County and two in Columbia County. Plaintiff's complaint also asserts causes of action sounding in unjust enrichment and fraud in the inducement, and seeks a constructive trust.
Columbia and Dutchess Counties are in the Third Judicial Department.
Defendants move, inter alia, for a change of venue of certain or all of plaintiff's causes of action, as a matter of right, from Kings County to Columbia and/or Dutchess County, on the ground that Kings County is an improper county for a trial thereof, as the judgment demanded in those causes of action would "affect the title to, or the possession, use or enjoyment of, real property" located in Columbia and Dutchess Counties ( see CPLR 507). Defendants further move for a change of venue on the grounds of forum non conveniens (i.e., that the convenience of witnesses and the ends of justice will be promoted by the change of venue to Columbia and/or Dutchess County).
Plaintiff concedes that her claims and causes of action concern matters affecting title to real property, but opposes defendants' motion on the ground that Kings County is a proper venue, since one of the four subject properties is located in Kings County. Plaintiff further opposes the motion on the grounds that a change of venue would inconvenience plaintiff and plaintiff's witnesses, pose the threat of inconsistent verdicts and subject plaintiff and her prosecution of her action to certain prejudices that she may not encounter in Kings County. Plaintiff cross-moves for leave to amend her complaint.
Analysis
An action or proceeding in a Supreme Court to recover or to procure a judgment affecting title or an interest in realty must be tried in the county where the subject realty, or some part thereof, is situated (CPLR 507; Burton v. Ontra, Inc., 167 Misc 2d 977, 978). "Trial in the county of the realty is favored 'in the interest of orderly procedure and for the sake of facility and certainty in title records'" ( Craig v. Clifton Springs Country Club, Inc., 26 AD2d 903, quoting Reichenbach v. Corn Exchange Bank Trust Co., 249 App Div 539, 541). The court, in such an action or proceeding, has inherent power to order a change of venue to the county where the real property is located ( see Tilles v. Williams, 127 Misc 2d 575, 577, citing Reichenbach, 249 App Div at 541).
As to the instant matter, plaintiff's action is clearly triable in more than one county. Venue of this action may also properly lie in Columbia and Dutchess counties, the locations of three of the four subject realties ( see CPLR 507; Dollar Dry Dock Bank v. Piping Rock Builders, Inc., 181 AD2d 709, 710-711). However, plaintiff correctly argues that, since one of the four realties is located in Kings County, venue in Kings County is also proper and defendants are, therefore, not entitled to a change in venue as of right ( see Cole v. Lawas, 97 AD2d 912; Fairchild v. Union Ferry Co. of New York and Brooklyn, 117 Misc 470, 473 ["action may be properly brought in the county in which either property is located"]).
The court is also in agreement with plaintiff's argument that, as plaintiff's causes of action arise, for the greater part, out of the same facts and circumstances and largely involve the same witnesses and documents, three separate trials of this matter would cause the parties and their witnesses, along with the courts, an unwarranted inconvenience, pose the threat of inconsistent verdicts and further neither the economy nor the interests of justice. In sum, no good reason is presented as to why plaintiff's causes of action should be severed for three separate trials in three separate counties pursuant to CPLR 507.
Fortunately, "[a]lthough CPLR 507 is couched in mandatory terms, it is not entitled to absolute application. Courts may consider other factors, such as the subject matter of the lawsuit, the identity of the parties, the convenience of witnesses, and the interests of justice. Thus, CPLR 507 is subject to the court's power to change venue pursuant to CPLR 510 when a motion is made that . . . the convenience of material witnesses and the ends of justice will be promoted by the venue transfer" (3 Weinstein-Korn-Miller, NY Civ Prac, ¶ 507.02; see also Inspiration Enterprises, Inc. v. Inland Credit Corp., 54 AD2d 839, 841; Suchy v. Suchy, 126 Misc 2d 1094, 1096 ["It has been said that even though CPLR 507 is couched in mandatory terms, it should not be entitled to absolute application and that the court can look to the subject matter of the lawsuit, the identity of the parties, the convenience of witnesses and the interests of justice"], citing Town of Hempstead v. City of New York, 88 Misc 2d 366).
Noting, inter alia, that, in matrimonial actions brought under the Domestic Relations Law, where equitable distribution provisions often affect title to real property located in different counties, recognized precedent allows such actions to be tried in a county other than where the marital residence is found ( id.; see also Orsano v. Orsano, 108 Misc 2d 880 [1981]).
Notably, where venue in one county is proper pursuant to CPLR 507 and proper in a different county because of another venue provision, the court should, as a rule, select as the place of trial the county where the real property is situated. However, when, as here (and as often encountered in consolidation cases), venue is equally appropriate pursuant to CPLR 507 in separate counties (because the action affects title or interest in real property located in each county), the court may choose either or any proper county for trial ( id.; Dollar Dry Dock Bank, 181 AD2d at 710-711; Fairchild, 117 Misc at 473).
Here, the action being triable, pursuant to CPLR 507, in any and each of three different counties, defendants move for a change of venue from Kings County to Columbia or Dutchess County on the further grounds, and pursuant to CPLR 510 (3), that the convenience of material witnesses and the ends of justice will be promoted by such change.
A motion made pursuant to CPLR 510 (3) for a change of venue on the grounds of convenience of witnesses is addressed to the sound discretion of the court, whose "determination will not be disturbed on appeal unless the court failed to consider all of the relevant factors" ( Wentzel v. Allen Machinery, Inc., 277 AD2d 446, 447; Tonioli v. Hilbert, 1 Misc 3d 912[A] [2004]; see also Rodriguez v. Wilson, 201 AD2d 636; Gennaro v. Grossfeld, 186 AD2d 718; Levenstein v. Parks, 163 AD2d 367, 368; Weisemann v. Davison, 162 AD2d 448; Morale v. La Grange Inn, Inc., 160 AD2d 783, 784). "Rough equality of factors in favor of both counties will not warrant a reversal of the trial court's exercise of discretion" in fixing venue ( Cole, 97 AD2d at 912).
The "movant bears the burden of demonstrating that the convenience of witnesses would be better served by the change" in venue ( Alvarez v. D K Construction, Inc., 221 AD2d 224, 225) and is required to set forth: (1) the names, addresses and occupations of the prospective witnesses who will be inconvenienced; (2) "the facts to which the proposed witnesses will testify at trial, so that the court may judge whether the proposed evidence of the witnesses is necessary and material"; (3) that they are, in fact, willing to testify; and (4) "how the witnesses in question would in fact be inconvenienced in the event a change of venue were not granted" ( O'Brien v. Vassar Brothers Hospital, 207 AD2d 169, 172-173; see also Dores v. New York Medical Group, P.C., 259 AD2d 297; Levenstein, 163 AD2d at 368; Weisemann v. Davison, 162 AD2d 448; Chimarios v. Duhl, 152 AD2d 508, 509; Alexandre v. Pepsi-Cola Bottling Co., Inc., 150 AD2d 742; Greene v. Hillcrest General Hospital, 130 AD2d 621; Tonioli, 1 Misc 3d at 912).
Defendants provide, in support of this branch of their motion, affidavits setting forth in detail the names and business or residential addresses of twelve or more potential witnesses, eleven of whom live and/or work in Columbia or Dutchess County and have confirmed their willingness to testify in this action. Defendants' affidavits further relate that said witnesses, who are sellers, brokers, owner association members and close acquaintances of plaintiff and defendant Papreka, will testify to matters relevant and material to this action and concerning the facts and circumstances surrounding the purchase of three of the four realties, including the source of the funds used to effectuate those purchases and the nature of the parties' relationship with each other at the time of one or more such purchases.
Defendants expect to prove, by this evidence, that there was no written or oral agreement for a joint sharing of all assets acquired during the relationship as alleged by plaintiff, that Papreka purchased some of the realties using money she inherited, and that three of the subject real properties were purchased by Papreka after plaintiff had already determined to end the relationship. Defendants' affidavits also relate that Columbia and Dutchess counties are located approximately three hours from Kings County and that these prospective witnesses would be either severely inconvenienced or unable to give evidence in this action due to such inconvenience, if a change in venue were not granted.
Defendants additionally present evidence that numerous financial and bank records pertinent to this matter are located in Columbia and/or Dutchess County. Finally, although the congestion of the court calendar is never dispositive in venue decisions, it is an appropriate matter for consideration ( see Morgulas v. Yudell Realty, Inc., 161 AD2d 211, 214, citing A.M.I. International, Ltd. v. Gary Pool Sales Service, Inc., 94 AD2d 890; Creed v. United Hospital, 158 AD2d 654, 655; Thomas v. Small, 121 AD2d 622, 624). Here, defendants present evidence that the court calendars in Columbia and Dutchess Counties, from filing of the note of issue to trial, are significantly less congested than in Kings County, thus promoting the ends of justice by affording the litigants a speedier trial ( Thomas, 121 AD2d at 624).
Defendants have, by this collective evidence, met their burden and shown that the convenience of non-party witnesses and interest of justice would, in fact, be met by a change of venue and that the court's exercise of discretion in this area is warranted ( see Gangi v. DaimlerChrysler Corp., 14 AD3d 482; Professional Vehicle Leasing, Ltd. v. Continuing Developmental Services, Inc., 275 AD2d 313, 314; Chimirri v. Evergreen America Corp., 211 AD2d 743, 744; Thomas, 121 AD2d at 622; Gerulaitis v. Recreational Concepts, Inc., NYLJ, May 16, 1997, at 25, col 6).
Plaintiff was, accordingly, required to make a showing that venue in Kings County is preferable to Columbia or Dutchess counties ( see Alvarez, 221 AD2d at 225 ["a plaintiff who has designated a proper venue is under no obligation to make a showing that the county designated is in any way preferable to the one to which the change is sought, unless and until the party seeking the change has made an adequate showing as to the convenience of material witnesses and the furtherance of justice"]).
Plaintiff's argument, in opposition, that she and two non-party witnesses who reside in Kings or New York County will be inconvenienced by a change in the location of this trial from Kings County to Columbia or Dutchess County is insufficient, in light of defendants' showing, inter alia, that a significant preponderance of the material witnesses and record evidence reside in Columbia and Dutchess counties ( see McGuire v. General Electric Co., 117 AD2d 523), to warrant denial of the motion for a change of venue. Nor is the court convinced, based upon plaintiff's assertions as to these two witnesses' prospective testimony, that said witnesses are in possession of material evidence relating to the four properties in question (as opposed to material evidence relating to another property allegedly formerly owned by plaintiff and Papreka), or evidence that would be admissible with respect to any other issue in this action.
Plaintiff also alleges that she may be prejudiced by a change of venue from Kings County to Columbia or Dutchess County in that she would be forced to prosecute her action in a county and before fact finders she believes may possess a less liberal, open or accepting attitude towards the lifestyle and relationship plaintiff shared with Papreka (and, thus, a less liberal, open or accepting attitude towards plaintiff), than the attitude enjoyed by fact finders residing in Kings County.
The court is neither ignorant nor unmindful of this particular concern. However, plaintiff's "mere belief, suspicion or feeling," in the absence of a showing of facts and circumstances that she could not receive a proper and impartial trial in those upstate counties, is insufficient to justify the denial of a change of venue ( Jablonski v. Trost, 245 AD2d 338, 339-340; Thomas, 121 AD2d at 624 ["The conjectural fears and speculations of the plaintiff in this case fail to establish a strong possibility that an impartial jury cannot be chosen"]).
The court further notes that, because Papreka and some of defendants' prospective witnesses share the exact same or similar lifestyle enjoyed by plaintiff, plaintiff fails to demonstrate that defendants would not face an equal prejudice as a result of the change of venue ( see Nelson v. Nelson, 21 NYS 287, 288 [1892] [the granting or refusal of a motion for a change of venue on account of local prejudice will not be reviewed unless an abuse of discretion clearly appears]).
The court has considered plaintiff's remaining arguments and rejected them as being without merit.
Based upon movants' showing and under the circumstances of this matter, including that two of the four subject real properties are in Columbia County, which is adjacent to the location of another of the four realties, Dutchess County; that Columbia County contains a great preponderance of the material records and witnesses, and is where the convenience of those witnesses would be best served; and Columbia County appears to have by far the least court calendar congestion, thereby promoting the ends of justice and affording the litigants a speedier trial, the court finds it warranted that venue of this action be changed to Columbia County, as Columbia County is the most appropriate county for trial thereof.
It is well-settled that, as a matter of policy, once a court determines to grant a party's motion for a change of venue, it is preferable to defer ruling upon any other issues presented by the parties and leave their resolution to the Justice to whom the case is to be assigned in the county to which venue has been changed ( see CPLR 511 [d]; Taylor v. New York City Transit Authority, 131 AD2d 460, 462; Rosenblatt v. Sait, 34 AD2d 238, 239; Gerulaitis, NYLJ, May 16, 1997, at 25, col 6; Burton, 167 Misc 2d at 978, citing Matter of Ryback v. Lomenzo, 38 AD2d 915; see also Daley v. Daley, 257 AD2d 593; Zinker v. Zinker, 185 AD2d 698).
Accordingly, the court denies, without prejudice to renewal in the proper forum, the remainder of defendants' motion and all of plaintiff's cross motion.
Conclusion
Based upon all of the foregoing, defendants' motion is granted to the extent that a change of venue of this action from Kings County to Columbia County is hereby ordered.
The remainder of defendants' motion and the entirety of plaintiff's cross motion are denied without prejudice to renew same in Columbia County Supreme Court.
The Clerk of this court is directed, upon service of a copy of this order with notice of entry and payment of the appropriate fee, if any, to transfer all papers on file in this action and certified copies of all minutes and entries herein, if any, to the Clerk of the Supreme Court, Columbia County ( see CPLR 511 [d]).
The foregoing constitutes the decision, order and judgment of this court.