Opinion
100120/2010.
November 1, 2010.
DECISION AND ORDER
Plaintiff brings, this action for personal injuries due to defendant's negligence when she tripped over a spare tire on defendant's premises at 100 Riverside Avenue, Yonkers, in Westchester County. Defendants move to change the venue of this action from New York County to Westchester County. C.P.L.R. §§ 503, 510, 511. C.P.L.R. § 503(a) permits venue in the county where a party resides when the action is commenced. If plaintiff designates a county without adequate basis, § 510(1) permits a change of venue, and § 511(a) and (b) provide for a motion to change venue.
Although C.P.L.R. § 510(3) also permits a change of venue to promote the convenience of material witnesses and the ends of justice, defendant does not justify Westchester County with the evidentiary specifics required. Neither the parties' convenience nor the place of injury is a factor in changing venue. C.P.L.R. §§ 503, 510. An evidentiary basis for a more convenient venue must include the actual names, addresses, and occupations of each expected nonparty witness; the detailed facts to which these witnesses will testify, to show they are necessary; and a showing that they are willing to testify, but will be inconvenienced significantly unless the court permits the requested venue.Rosen v. Uptown Gen. Contr., Inc., 72 A.D.3d 619, 620 (1st Dep't 2010); Krochta v. On Time Delivery Serv., Inc., 62 A.D.3d 579, 580 (1st Dep't 2009);Rodriguez-Lebron v. Sunoco, Inc., 18 A.D.3d 275, 276 (1st Dep't 2005). Defendant has not established witnesses' willingness to testify, nor their inconvenience were they called to testify in New York County. Merely listing witnesses' residence or business address in Westchester County, for example, does not establish such inconvenience, as the witnesses may work or live in New York County or regularly visit New York County for other reasons.
Unless plaintiff's choice of venue was in fact without adequate basis, defendant may not now choose an alternative to plaintiff's chosen venue. C.P.L.R. §§ 509, 510(1), 511(a); Johanson v. J.B. Hunt Transp., Inc., 15 A.D.3d 268, 270 (1st Dep't 2005);Rivera v. Jensen, 307 A.D.2d 229 (1st Dep't 2003);Clarke v. Ahearn Prod. Servs., 181 A.D.2d 514, 515 (1st Dep't 1992) . See Castro v. New York Med. Ctr. Of Queens, 52 A.D. 3d 251, 252 (1st Dep't 2008); Hernandez v. Seminatore, 48 A.D.3d 260 (1st Dep't 2008); Montesano v. New York City Hous. Auth., 47 A.D.3d 215, 217 (1st Dep't 2007);Discolo v. River Gas Wash Corp., 41 A.D.3d 126 (1st Dep't 2007). New York County, the venue chosen by plaintiff, is the residence of "one of the parties," defendant, C.P.L.R. § 503(a), based on its principal place of business. C.P.L.R. § 503(c). While defendant's address on its certificate of incorporation, on which plaintiff relies, may not necessarily be its principal place of business, defendant fails to show that that address is not its principal place of business or even that defendant conducts business anywhere else. Discolo v. River Gas Wash Corp., 41 A.D.3d 126. Thus, even if defendant's chosen venue, Westchester County, is an available alternative, plaintiff's choice of New York County was adequately premised in the first instance. C.P.L.R. §§ 503(a) and (c), 509. E.g.,Krochta v. On Time Delivery Serv., Inc., 62 A.D.3d 579, 580-81 (1st Dep't 2009); Clarke v. Ahearn Prod. Servs., 181 A.D.2d at 515.
Consequently, defendant has not met its burden to show that no party resides in New York County or that plaintiff's chosen venue is otherwise unpremised. C.P.L.R. §§ 503(a), 510(1), 511(a);Castro v. New York Med. Ctr. of Queens, 52 A.D. 3d at 252;Hernandez v. Seminatore, 48 A.D.3d 260; Rivera v. Jensen, 307 A.D.2d 229; Clarke v. Ahearn Prod. Servs., 181 A.D.2d at 515. Defendant thus has failed to overcome the presumption that venue is plaintiff's choice. Johanson v. J.B. Hunt Transp., Inc., 15 A.D.3d at 270.
In sum, based on defendant's failure to establish witnesses' inconvenience, C.P.L.R. § 510(3), and based on its principal place of business and thus its residence in New York County, C.P.L.R. §§ 503(a) and (c), 510(1), the court denies defendant's motion to change the venue of this action to Westchester County. Because defendant's motion to change venue fails on its merits, the court need not address the motion's timeliness. C.P.L.R. § 511(a) and (b). This decision constitutes the court's order.