Opinion
June 20, 1991
Appeal from the Supreme Court, Putnam County (Dickinson, J.).
Although defendants do not oppose consolidation of this matter, they do contend that because they commenced their action first in New York County, Supreme Court erred in fixing the place of trial in Putnam County where the second action was commenced. However, while it is generally true that, in the absence of special circumstances, venue of a consolidated action should be where the first action was instituted (see, Strasser v Neuringer, 137 A.D.2d 750; Boyea v Lambeth, 33 A.D.2d 928), the final decision rests in the discretion of the court and any circumstances may be considered which negate placing venue where the first action was commenced (Perinton Assocs. v Heicklen Farms, 67 A.D.2d 832). Furthermore, venue should normally be in the county where the claim arose (Jansen v Bernhang, 149 A.D.2d 468). Here, the claim arose in Putnam County, defendants maintain a residence in that County, an earlier trial could be had there and the convenience of the witnesses would be served by a trial in that County (see, Colburn v Brown, 23 A.D.2d 574). These facts establish the special circumstances required for setting venue in Putnam County even though the first action was commenced in New York County (see, Boyea v Lambeth, supra). Defendants' remaining contentions have been considered and found to be lacking in merit.
Casey, J.P., Yesawich Jr., Mercure, Crew III and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.