Summary
In Varney v. Edward S. Gordon Co., Inc., 139 AD2d 973 (4th Dept., 1988), where a declaratory judgment action was commenced in New York County by Gordon by service of a summons with notice, but followed several days later by Varney's service of a summons and complaint in Onondaga County, the Appellate Division ruled that the trial court erred in placing venue in Onondaga County.
Summary of this case from AHMED v. KHANOpinion
April 8, 1988
Appeal from the Supreme Court, Onondaga County, Hayes, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Edward S. Gordon Company, Inc. (ESG) commenced a declaratory judgment action against Kevin P. Varney (Varney) in Supreme Court, New York County, by service of a summons with notice on June 29, 1987. A few days later Varney commenced an action against ESG in Supreme Court, Onondaga County, by service of a summons and complaint on July 2, 1987. Varney moved in Onondaga County to consolidate the two actions and to place venue in Onondaga County; ESG cross-moved to consolidate the actions, but to place venue in New York County.
Consolidation was properly ordered at the request of both parties, but the court erred in placing venue in Onondaga County. Generally, the proper venue is in the county in which the first action was commenced, absent proof of circumstances compelling trial in another venue (Olownia v. Toussaint, 98 A.D.2d 716, 717). The court in its discretion may determine that factors such as convenience of witnesses or court congestion compel departure from the general rule (Perinton Assocs. v. Heicklen Farms, 67 A.D.2d 832, 833), but on this record we find that it was an abuse of discretion to depart from the general rule (see, Leung v Sell, 115 A.D.2d 929). Although Onondaga County is Varney's county of residence, New York County is ESG's place of business, the underlying transactions occurred in New York County or an adjacent county, and the only nonparty witnesses named either reside in or are employed in New York County. Thus, ESG's cross motion to place venue in New York County must be granted.