Opinion
2442604.
Decided March 24, 2005.
Defendants PORT AUTHORITY OF NEW YORK AND NEW JERSEY and THE HERTZ CORPORATION (collectively referred to hereinafter as defendants or movants) move seeking an order pursuant to CPLR § 511(a) and (b) changing the venue of this action from Bronx County to Queens or Duchess County, New York. It is alleged that the only basis for the venue in this action is defendants' alleged place of residence. It is alleged that Queens County, the county of occurrence or Duchess County, the county of plaintiffs' residence, is the proper venue for this action. Plaintiffs oppose the motion asserting that the action is venued properly because pursuant to McKinney's Unconsolidated Laws of New York §§ 7106 and 6403, defendant can be sued in any of the counties within New York City, including Bronx County. As such plaintiffs assert that venue is proper.
For the reasons that follow hereinafter, defendants' motion is hereby granted.
This case involves an accident within JFK International Airport, located in Queens County, New York. The action was commenced on November 1, 2004 and issue was joined when defendants interposed an answer on December 22, 2004. Along with an answer defendants served a demand to change venue. To date said demand has gone unanswered. The instant motion was made on January 5, 2005. According to the summons and complaint, plaintiffs are residents of Duchess County, New York. Based on the summons, Bronx County was designated as the venue for this action because it is alleged that this county is defendants' place of residence.
Venue
All things being equal, a transitory action should be tried where the cause of action arose. Clark v. New Rochelle Medical Center, 170 AD2d 271 (1st Dept. 1991); Kim v. Flushing Hospital and Medical Center, 138 AD2d 252 (1988). Article 5 of the CPLR fixes the venue of certain actions based on a host of different factors, such as the type of action, the residence of the parties or the status of the party being sued. CPLR § 503 prescribes venue in transitory actions based on the residence of the respective parties. CPLR § 504 prescribes venue in actions against municipalities. CPLR § 505 prescribes venue in actions involving public authorities. CPLR § 510 sets forth the grounds for changing the venue of a particular action and CPLR § 511 sets forth the procedure for seeking the change. CPLR § 510 sets out three grounds warranting a change of venue.
CPLR § 510(1) provides for a change of venue when the county designated is improper. A defendant seeking to challenge the chosen venue on grounds that said venue is improper must first comply with the requisites of CPLR § 511, which requires that a demand to change venue be interposed with or prior to the service of an answer. Jason v. Dumel, 3 Misc 3d 1101(a) (Supreme Court, Kings County 2004). Thereafter, pursuant to CPLR § 511, plaintiff must either agree to change the venue or interpose an affidavit indicating why the venue chosen is proper and why the proposed venue is improper. An action brought in the wrong county requires a venue change as a matter of right. Id. However, before such relief can be had, defendant is required, as mentioned above, to comply with CPLR § 511. Id. When a defendant makes a motion seeking to change the venue pursuant to CPLR § 510(1), the court must first determine, given the type of action, what venue provision governs and what constitutes proper venue. Uruchima v. Burns, 6 Misc 3d 1022(A) (Supreme Court, Kings County 2005). Thereafter, it is defendant's burden to establish that given the type of action, the venue chosen was improper. Id. Plaintiff must demonstrate that the venue chosen was proper. Id.
Venue changes pursuant to CPLR §§ 510(2) and (3), are not changes granted as a matter of right; instead such venue changes are left to the sound discretion of the Court. Id.; O'Brien v. Vassar Brothers Hospital, 207 AD2d 169 (2nd Dept. 1995). Such venue changes do not require that defendant serve a demand to change venue pursuant to CPLR § 511. On a motion to change venue pursuant to CPLR § 510(3), where it is alleged that the convenience of the witnesses would best be served by the change, a party must satisfy several factors. O'Brien v. Vassar Brothers Hospital, 207 AD2d 169 (2nd Dept. 1995). First, the moving party must provide the names, addresses, and occupations of all prospective witnesses. Id. Second, the facts about which said witnesses will testify must be disclosed so the court can ascertain whether said witnesses are material and necessary. Id. Third, it must be demonstrated that the witnesses are willing to testify. Id. lastly, it must be shown how the witnesses would be inconvenienced absent the change in venue. Id. a failure to meet the requirements outlined warrants denial of the motion to change venue. Id.
A plaintiff forfeits the right to select the venue in an action if said plaintiff chooses an improper venue in the first instance. Kelson v. Nedicks Stores, Inc., 194 AD2d 315 (1st Dept. 1984). Furthermore, plaintiff's failure to respond to a defendant's demand to change venue, supports a transfer of the case to the venue selected by defendant. Lynch v. Cyprus Sah Dorr Co., Inc., 272 AD2d 260 (1st Dept. 2000).
Venue in personal injury transitory actions is governed by CPLR § 503. Uruchima v. Burns, 6 Misc 3d 1022(A) (Supreme Court, Kings County 2005); Jason v. Dumel, 3 Misc 3d 1101(a) (Supreme Court, Kings County 2004).
In cases where the defendant is the Port Authority of New York and New Jersey, it is well settled that pursuant to McKinney's Unconsolidated Laws of New York §§ 7106 and 6403, the Port Authority of New York and New Jersey can be sued in any of the counties within New York City, including Bronx County. Rodriguez v. Port Authority of New York and New Jersey, 293 AD2d 325 (1st Dept. 2002); Caamano v. Port Authority of New York and New Jersey, 188 Misc 2d 321 (Supreme Court, Bronx County 2001).
While it appears that a motion pursuant to CPLR § 503(3) will be denied unless movant meets the burden articulated above, it appears that a court will at times exercise its discretion and change the venue of an action even if the case was properly venued to begin with. Kim v. Flushing Hospital and Medical Center, 138 AD2d 252 (1988). In Kim, the court granted a change of venue, where it was determined that the venue was proper when the case was commenced. Id. In Kim, the court reasoned that since the case no longer had a nexus to the county of venue, circumstances warranted a change of venue. Id. In Kim, the plaintiff ultimately moved to another county other than the one where the case had been venued. Id. In cases where venue has been chosen based on defendant's place of business rather than the county of occurrence, this court has consistently granted motions to change the venue of the action to the county of occurrence. Id.; Ford v. Servistar Corporation, 133 AD2d 23 (1st Dept. 1987); Siegel v. Greenberg, 85 AD2d 516 (1st Dept. 1981). In Ford, it was clear that venue was properly chosen based on defendant's place of business. However, the court reasoned that the action ought to have been tried in the county of occurrence. Ford v. Servistar Corporation, 133 AD2d 23 (1st Dept. 1987). Moreover, in Wilson v. Sponable, 77 AD2d 799 (4th Dept. 1980), the court held that since CPLR § 510(3) allows the court to consider whether the change in venue promotes the "ends of justice," the court is free to consider other factors in deciding whether to change venue. This course of action has been employed and deemed appropriate in cases where the plaintiff did not reside in the venue chosen by her; McDaniel v. Port Authority of New York and New Jersey, 202 AD2d 222 (1st Dept. 1994), and where most of the witness were to be found in the county of occurrence rather than county designated. Sendrow v. Quality Ruskin Free Corp., 139 AD2d 455 (1st Dept. 1988).
Discussion
Based on case law and McKinney's Unconsolidated Laws of New York §§ 7106 and 6403, Bronx County is one of many permissible venues for this action. Since this is a personal injury transitory action, venue is governed by CPLR § 503 which prescribes the proper venue as any county where the parties reside. Plaintiffs designated Bronx County as the place of venue because they allege that the defendants reside therein. This is actually inaccurate. It isn't that defendants reside in Bronx County, rather, defendants, pursuant to statute can be sued in Bronx County. Other than alleging a form of forum shopping by plaintiffs, defendants fail to assert which subsection of CPLR § 510 governs the relief they seek. Instead, defendants site to cases where venue was changed under similar circumstances to those in this action.
At the outset the court notes that it cannot as a matter of law conclude that venue in this action is improper. Contrary to defendants' assertions, the case law supports a finding that they can be sued in Bronx County. However, having said that, the case law supports a change of venue under the circumstances herein. This case's only connection to Bronx County is the fact that pursuant to statute defendants can be sued here. The accident did not occur in Bronx County and the plaintiffs nor defendants reside here. Consequently, based on the cases cited above, the court, in exercising its discretion, must conclude that Queens County is the proper venue for this action. The Court finds plaintiffs' arguments without merit. The mere fact that a statute prescribes venue does not, based on the case law, prevent the court from changing the same when, as here, said venue is challenged. Moreover, McKinney's Unconsolidated Laws of New York §§ 7106 and 6403, do not prevent this court, as argued by plaintiffs, from changing venue in actions involving these particular defendants. In McDaniel v. Port Authority of New York and New Jersey, 202 AD2d 222 (1st Dept. 1994), the Court did the very thing this court has done; changed the venue in a case with the very same defendants from Bronx County to another county after concluding that the county of occurrence was the proper venue. Contrary to plaintiffs' assertion McDaniel, has not been overruled and is still good law. In Rodriguez v. Port Authority of New York and New Jersey, 293 AD2d 325 (1st Dept. 2002), the court denied a motion to change venue in an action against these very defendants, not because it felt that it had no power to change the venue but rather because movant failed to demonstrate that the designated venue posed an inconvenience to the witness in that case. In Caamano v. Port Authority of New York and New Jersey, 188 Misc 2d 321 (Supreme Court, Bronx County 2001), the court denied a motion to change venue because it held that Bronx County was a proper venue pursuant to statute. In that case the court exercised its discretion and in this case this court will do the same albeit to reach a different conclusion. Inasmuch as there exist no real nexus to Bronx County and the underlying negligent act occurred in Queens County, defendants' motion is hereby granted. It is hereby
ORDERED that the venue in this action be changed to Queens County. It is further
ORDERED that upon service upon him of a certified copy of this Order, and upon payment of the appropriate fee, if any, the Clerk of Bronx County is directed to transfer all papers in this action to the Clerk of Queens County. It is further
ORDERED that defendants serve a copy of this order with notice of entry upon plaintiffs within thirty (30) days hereof.
This constitutes this Court's decision and Order.