Opinion
301891-2008.
Decided March 17, 2009.
Erik L. Gray, Esq., for Plaintiff.
Karla Denalli, Esq., for Defendant Port Authority.
Defendant Port Authority of New York New Jersey (hereinafter "Port Authority'), an entity created by compact between New York and New Jersey and approved by Congress, moves, pursuant to CPLR § 510 (3), for an order directing that venue be changed in the interests of justice from Bronx County to Queens County for the convenience of necessary witnesses. The motion is denied.
See, § 1, Laws of 1921, c.154 [eff. Apr 2, 1921]. See generally, Unconsolidated Laws, Title 17, § 6401 et seq.; N J State Annot. § 32:1:1, et seq. See also, Caamano v. Port Auth., 188 Misc 2d 321 (Sup. Ct. Bronx 2001); Estrada v. Parking Assocs. Corp., 37 Misc 2d 1033 (Sup. Ct. Kings 1962).
Act of Aug 23, 1921, ch. 77, 42 US Stat 174 (1921).
Plaintiff premises venue in this case upon the fact that the Port Authority is a de jure resident of Bronx County pursuant to Unconsolidated Laws § 7106. In support of its motion, Movant says a change of venue is equitably required because the county (Bronx County) originally chosen by Plaintiff is not proper venue in that Plaintiff has no connection, residential or otherwise, to Bronx County and the interest of justice requires that venue be changed to Queens County for convenience of material witnesses. Further, venue should be in Queens County because the action is against a public authority (see, CPLR § 505[a]).
This negligence action involves allegations that Plaintiff was injured when she slipped and fell in a parking lot at La Guardia Airport in Queens County. In essence, Plaintiff says she suffered injuries because Port Authority employees allowed a dangerous snow and ice condition to accumulate. As a result of that negligence, Plaintiff says she was damaged in an amount that remains undetermined.
Issue of Venue
The only issue before the Court is whether convenience of witnesses and the interests of justice require that venue be changed to Queens County. Because the Movant is an interstate public authority, certain additional factors must be considered. Among them is Title 17 of the Unconsolidated Laws which carries out the terms of the interstate compact that created the Port Authority. Specifically, Chapter 24 of Title 17 sets forth rules for litigation involving the Port Authority, including venue provisions.
While undisputedly § 7106 of the Unconsolidated Laws provides that the Port Authority is a resident of each county within the Port of New York District, Movant asks the Court to consider the general provisions of CPLR § 505(a) requiring place of trial, in a case involving a public authority, to be in a county in which the authority has its principal office or where it has facilities involved in the action. In this regard, according to Movant, the Port Authority's principal office is in the Borough of Manhattan (New York County) and the facility involved (La Guardia Airport) is located in Queens County.
Unconsolidated Law § 7106 ("Venue of action; consent to liability for tortuous acts") provides, in pertinent part, that "venue in any suit, action or proceeding against the port authority shall be laid within a county or a judicial district, established by one of said states or by the United States, and situated wholly or partially within the port of New York district. The port authority shall be deemed to be a resident of each such county or judicial district for the purpose of such suits, actions or proceedings. Although the port authority is engaged in the performance of governmental functions, (New York and New Jersey) consent to liability on the part of the port authority in such suits, actions or proceedings for tortuous acts committed by it and its agents to the same extent as though it were a private corporation."
The Port Authority of New York and New Jersey was the first bi-state agency ever created under a clause of the Constitution permitting compacts between states with Congressional consent. Its area of jurisdiction is called the "Port District," a region which is within a radius of approximately 25 miles of the Statue of Liberty (see generally, Frankfurter Landis, Compact Clause of the Constitution A Study in Interstate Adjustments, 34 Yale L. J. 685 [1925] [discussion of Port Authority history]).
Movant argues that the two statutes, that is, Unconsolidated Law § 7106 and CPLR § 505(a), when read in conjunction, require the Court to find venue where the authority's facility is located. Thus, Movant says, this case belongs in Queens County. Further, Movant insists that Plaintiff has no reason for Bronx County venue except for a bald assertion of "forum shopping," a factor which is judicially discouraged (see generally, Interested Underwriters at Lloyd's v. HDI, III Associates, 213 AD2d 246 [1st Dept. 1995]).
Plaintiff's Opposition
Addressing witness convenience, Plaintiff says the Port Authority specifies no non-employee witness who is inconvenienced by a Bronx County venue. Further, Plaintiff notes that convenience of a party's employee cannot be a factor in considering a change of venue based on CPLR § 510 (3) (see, Cilmi v. Greenberg, Trager, Toplitz Herbst, 273 AD2d 266 [2nd Dept. 2000]). Movant fails to show convenience of any material witness is served by a venue change or how such witness would be inconvenienced by testifying at a trial in Bronx County (see, Heinemann v. Grunfeld, 224 AD2d 204 [1st Dept. 1996]). Therefore, because the only identified witnesses potentially inconvenienced are party employees, the Court should refrain from using its discretion to change venue ( see, Martinez v. Dutchess Landaq, Inc., 301 AD2d 424 [1st Dept. 2003]).
The two witnesses who submitted affidavits claiming inconvenience (Cleveland Plunkett and Felice De Marzo) were employees of Movant and Defendant Aero Snow Removal Corp., respectively.
Port Authority's Reply
In reply, Movant urges that under CPLR § 510(3) the Court can consider whether venue change promotes the "ends of justice" and in so doing the Court should consider factors beside witness convenience — especially the Port Authority's lack of facilities in Bronx County (see, McDaniel v. Port Auth., 202 AD2d 222 [1st Dept. 1994]).
Legal Discussion
While CPLR § 510 permits a Court to change place of trial on various grounds, the sole issue presented for the Court's consideration here is whether it invoke discretion to change venue from Bronx County to Queens County for the convenience of necessary witnesses. CPLR § 510(3) empowers a Court to change venue for an action where the convenience of material witnesses and the ends of justice will be promoted by the change.
The Court finds that the totality of the evidence, including the submitted affidavits of employees Cleveland Plunkett and Felice DeMarzo, do not compel the use of its discretion. Upon this record, the Court is convinced that venue is proper in Bronx County based upon Unconsolidated Laws § 7106. The Court finds venue should remain in Bronx County because the interests of justice do not require a change in the trial's location.
Pursuant to Unconsolidated Laws § 7106, the Port Authority is de jure deemed to be a resident of each county in New York City and therefore qualifies as a Bronx County resident as well as a resident of Queens County (see generally, O'Connor v. Port Auth. of NY NJ, 12 Misc 3d 1181A [Sup. Ct. Bronx County 2006] [ forum non-conveniens]). Because Plaintiff chose Bronx County initially, and Movant failed to timely move under CPLR Rule 511, the Port Authority limited its grounds for venue change to witness convenience. The fact that the parties here (beside the Port Authority) are not residents of Bronx County and the parking lot and airport are located in Queens County are insufficient to justify the exercise of discretion to change venue (see, Caamano v. Port Auth., 188 Misc 2d 321 [Sup Ct. Bronx 2001]). Further, reliance upon CPLR § 505(a) is inconsistent with the more specific provisions of Unconsolidated Laws § 7106 (see, Caamano v. Port Auth., 188 Misc 2d 321 [Sup Ct. Bronx 2001]). As the Port Authority is considered a de jure resident of Bronx County,
In fact, the Port Authority can be viewed as a de facto Bronx County resident because it maintains a facility in this county know as the "Bathgate Industrial Park" (see generally, Mineo v. Port Authority of New York New Jersey, 779 F2d 939 [3rd Cir. 1985]). the Court will not exercise its discretion under these facts to change venue.
Wherefore, based upon the foregoing, it is
ORDERED that Defendant Port Authority's motion, seeking change of venue to Queens County based upon convenience of material witnesses and promotion of the interests of justice, is DENIED.
The foregoing constitutes the decision and order of this Court.