Summary
In Saxe v. OB/GYN Associates, P.C., 86 NY2d 820 (1995), and DeLuca v. CBS, Inc., 105 AD2d 770 (2nd Dept. 1984), one of the parties was a sitting Supreme Court Justice in the court in which the action was commenced.
Summary of this case from TRUST U/W/O NICK GALLIPOLI v. RUSSOOpinion
Decided September 21, 1995
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Stanley S. Ostrau, J.
Martin, Clearwater Bell, New York City (Patricia D'Alvia and Barbara D. Goldberg of counsel), for OB/GYN Associates, P.C., and others, appellants.
Heidell, Pittoni, Murphy Bach, P.C., New York City (Mitchell D. Frankel of counsel), for Mirta Veber, appellant.
Kramer, Dillof, Tessel, Duffy Moore, New York City (Norman Bard of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, plaintiffs' motion to transfer the action to Kings County denied, and the matter remitted to Supreme Court, New York County, for further proceedings not inconsistent with this memorandum. The certified question is answered in the negative.
Where one of the parties to the action commenced in New York County is a Supreme Court Justice in that jurisdiction, the Appellate Division did not abuse its discretion in transferring the action out of New York County pursuant to CPLR 510 (2), to avoid concerns about the appearance of impropriety (see, Rothwax v Spicehandler, 161 A.D.2d 184; De Luca v CBS, Inc., 105 A.D.2d 770).
In light of the express legislative preference for actions being tried in proper counties (see, CPLR 502, 503, 510; 511 [b]), however, a court must, whenever possible, transfer an action under CPLR 510 to a county in which the action properly could have been commenced. Kings County, requested by plaintiffs, is an improper county for commencing the action under CPLR 503 (a). Therefore, the court should have transferred the action to Westchester County, the county requested by defendants, or one of the other proper alternative forums in which various defendants resided at the commencement of this action.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.