From Casetext: Smarter Legal Research

Fish v. Davis

Supreme Court, Appellate Division, First Department, New York.
Jan 10, 2017
146 A.D.3d 485 (N.Y. App. Div. 2017)

Opinion

01-10-2017

Jennifer FISH, Plaintiff–Respondent, v. Paula DAVIS, et al., Defendants–Appellants.

Edward P. Kallen, New City, for appellants. Law Office of Anthony Agrippina, Flushing (Anthony Agrippina of counsel), for respondent.


Edward P. Kallen, New City, for appellants.

Law Office of Anthony Agrippina, Flushing (Anthony Agrippina of counsel), for respondent.

TOM, J.P., RICHTER, SAXE, GISCHE, GESMER, JJ.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about May 9, 2016, which denied defendants' motion to change venue of the action from New York County to Rockland County, unanimously affirmed, without costs.

The motion court properly noted that defendants failed to comply with the procedural requirements of CPLR 511 by moving to change venue four months after serving an answer that did not request a change of venue (see CPLR 511 ; Pittman v. Maher, 202 A.D.2d 172, 175, 608 N.Y.S.2d 199 [1st Dept.1994] ). When a defendant fails to make a demand to change venue, the court may still exercise its discretion to change venue, but "only in certain limited situations," such as when the defendant seeks to enforce a contract provision or when "judicial policy dictates that a case be heard only in a proper county" (id. ). While CPLR 507 mandates that venue of an action involving title to or possession, use or enjoyment of real property be the county where the property is located (see Moschera & Catalano v. Advanced Structures Corp., 104 A.D.2d 306, 478 N.Y.S.2d 641 [1st Dept.1984] ), here, the action essentially seeks a determination of the individual parties' rights as shareholders of defendant corporation, which owns real property in Rockland County (see Rubinstein v. Bullard, 285 A.D.2d 366, 367, 726 N.Y.S.2d 660 [1st Dept.2001] ). In opposition to the motion, plaintiff demonstrated that subdivision of the property is not possible, and that the complaint seeks either rescission of the shareholders agreement or specific enforcement of its provision requiring the parties to implement a cooperative ownership plan. Accordingly, the court providently exercised its discretion in denying the motion to transfer venue to Rockland County.


Summaries of

Fish v. Davis

Supreme Court, Appellate Division, First Department, New York.
Jan 10, 2017
146 A.D.3d 485 (N.Y. App. Div. 2017)
Case details for

Fish v. Davis

Case Details

Full title:Jennifer FISH, Plaintiff–Respondent, v. Paula DAVIS, et al.…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Jan 10, 2017

Citations

146 A.D.3d 485 (N.Y. App. Div. 2017)
45 N.Y.S.3d 46
2017 N.Y. Slip Op. 118

Citing Cases

Patiwana v. Shah

Furthermore, venue could not have been properly placed in Queens County pursuant to CPLR 507. While CPLR 507…

N.Y. State Div. of Human Rights v. Ithaca Renting, LLC

Contrary to defendants' contention, while the complaint seeks to protect the rights of people with…