Opinion
February 23, 1995
Appeal from the Supreme Court, Bronx County (Barry Salman, J.).
Although the underlying incident arose in defendant's Bronx County store, as neither party resided in Bronx County at the time this action was commenced (CPLR 503 [a], [c]), venue was not properly placed there. Plaintiff's contention that Bronx County was a proper venue because a transitory action should be brought where the cause of action arose is without merit, that rule being predicated on the venue already being properly placed (Morales v. Muccio, 145 A.D.2d 340), and its application to the instant situation is excluded by the statute itself, CPLR 503, which, in subdivision (c) authorizes venue where the cause of action arose only if a party is a railroad or other common carrier. Accordingly, plaintiff forfeited his right to choose the venue when he selected an improper venue (Roman v Brereton, 182 A.D.2d 556, 557).
Since defendant fully complied with the procedure in CPLR 511 (b) for changing venue by serving a written demand before answering and thereafter moving within 15 days after service of the demand (Kelson v. Nedicks Stores, 104 A.D.2d 315), and since plaintiff's cross motion to retain venue in Bronx County was based solely on the meritless situs argument rejected above, we find that the court exceeded its authority by transferring this action to New York County upon its own initiative (supra); the court is only authorized to change venue upon motion (CPLR 510), and neither party moved for a transfer to New York County. Accordingly, under the circumstances present here, we find Westchester County to be a proper venue and modify accordingly.
Concur — Kupferman, J.P., Ross, Asch, Nardelli and Mazzarelli, JJ.