Opinion
103039/08.
Decided July 2, 2008.
Rios Levy LLP, Attorneys for Plaintiff.
Faust Goetz Schenker Blee, Attorneys for Defendants.
Defendant Blue Spartan LLC ("defendant") is a corporation organized under the Laws of the State of New York, with its principal office at 209 West 96th Street, New York, NY 10025. Defendant owns and operates the Blue Haven Motel in Montauk, New York. Defendant seeks to transfer this action from New York County to Suffolk County.
Plaintiff Michelle Velasco ("plaintiff") is a resident of Westchester County, New York. Plaintiff claims to have fallen and injured herself due to "inadequate lighting and a defective trap like condition" on the premises of the Blue Haven Motel. Plaintiff commenced the instant action in New York County Supreme Court, asserting that New York County is the location of defendant's principal place of business, and that records from the New York Department of State indicated that defendant's address for the service of process is at 209 West 96th Street, New York, NY, 10025.
Pursuant to CPLR § 510(1), CPLR § 510(3) and CPLR § 511, defendant moves to change venue from New York County to Suffolk County on the grounds of convenience as to material witnesses and the ends of justice. Defendant asserts that since the disputed event occurred in Suffolk County and the material witnesses are located in Suffolk County, New York County is not the proper venue for this action. Defendant further points out that none of the named parties is a resident of New York County, and that defendant's place of business, the Blue Haven Motel, is located in Suffolk County.
In opposition, plaintiff claims that during all relevant times, defendant was a New York corporation, with its principal place of business in New York County. Plaintiff states that her basis for venue selection was the address for service of process provided by the New York Department of State.
Plaintiff asserts that defendant did not strictly comply with CPLR § 511 and is now time barred from filing the instant change of venue motion. Plaintiff claims that where, as here, a defendant serves a demand to change venue with its answer, CPLR § 511 mandates that a motion for a change of venue must be brought within fifteen days. Here, plaintiff argues, defendant waited thirty-three days after serving its demand to change venue before filing the instant motion.
Plaintiff further argues that defendant is not entitled to a discretionary change of venue on the grounds of witness convenience pursuant to CPLR § 510(3), as defendant has failed to demonstrate any of the five criteria which plaintiff identifies as prerequisites to a successful transfer motion based on witness convenience.
Addressing defendant's claim that New York is an improper county, plaintiff argues that defendant has failed to produce any admissible evidence in support of its assertion. Plaintiff argues that defendant has failed to submit affidavits from persons that establish Suffolk County as defendant's principal place of business. Plaintiff contests that defendant's claim that New York is an improper venue is based solely on an attorney's assertion that Suffolk county is the proper venue for this action. Plaintiff argues that an attorney's affirmation has no evidentiary value, and that defendant has thus failed to support its motion that Suffolk County is the proper venue for this action. Plaintiff then cites to the record arguing that the defendant's verified answer admits its principal place of business is in New York County.
Finally, plaintiff reiterates that defendant has not complied with statutory rules, and asserts that even if plaintiff designated an improper county, which she did not, defendant's motion must still be denied. Plaintiff claims that she did not mislead defendant or conceal information with regard to venue selection, and for this reason defendant has no valid excuse for its failure to comply with the procedural filing deadlines specified under CPLR § 511.
In response, defendant disputes that its motion is time barred. Defendant asserts that a motion to change venue can be made at any time prior to trial, and is subject to the court's discretion.
Defendant further posits that as plaintiff's choice of venue was based solely upon defendant's designation of New York County as its principal place of business, this is an insufficient reason for the case to remain in New York County. Defendant contends that the balance of factors militates in favor of a transfer, stating that even if plaintiff's choice of venue was proper, it would be an abuse of discretion for the court to deny defendant's motion.
Responding to plaintiff's claim that defendant has failed to satisfy the five prerequisites to a change of venue motion based on witness convenience, defendant provides specific information to satisfy these five criteria. Defendant then argues that while defendant has identified a material witness who will be inconvenienced by a New York County trial, the plaintiff has failed to identify any material witnesses that support her contention to retain the case in New York County.
Defendant reiterates that this case has no substantial nexus to New York County, and that the plaintiff's contention rests solely upon the fact that defendant's principal place of business is located therein. Defendant again states that the accident occurred in Suffolk County, that the defendant owns property in Suffolk County, and that the defendant's relevant employees are all located in Suffolk County. Moreover, defendant asserts that any inspections necessary to determine liability in this case would have to be conducted in Suffolk County.
Analysis
Defendant's motion is brought on two grounds: (1) CPLR § 510(1), transfer due to improper venue, and (2) CPLR § 510(3), transfer on the ground of witness convenience.
The defendant is not entitled to relief under CPLR § 510(1) for two reasons. First, defendant provides no satisfactory explanation or denial of the assertion that its principal place of business is located in New York County. Plaintiff makes this allegation in its complaint, and defendant does not deny the allegation in its verified answer. Under CPLR § 3018(a), if a party's responsive pleading fails to address allegations made by the opposition in an earlier pleading, those allegations are deemed admitted.
Even if the defendant established that New York County was not its principal place of business, defendant's CPLR § 510(1) motion is time barred under CPLR § 511(b), which specifies in relevant part that "[t]he defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter, the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant."
Additionally, a motion to change venue based on plaintiff's selection of an improper county (CPLR § 510) is governed by a procedure quite different from that for the motion to change venue on discretionary grounds (CPLR § 510 and [3]). Defendant must precede the improper-venue motion with a "demand" in accordance with CPLR § 511(a) and then follow up with the motion as prescribed in CPLR § 511(b). See Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C511:1, at 251.
Defendant filed a Demand to Change Venue along with its answer on April 17, 2008. Defendant filed the notice of its transfer motion on May 20, 2008, thirty-three days after filing the initial demand. Because defendant belatedly moved for a change of venue this motion pursuant to CPLR § 510(1) must be denied.
Defendant's motion to transfer venue on the ground of witness convenience (CPLR § 510) is discretionary and can be made at any time before trial ( Korman v. City of New York, 89 AD2d 888, 453 NYS2d 452 (2nd Dept., 1982). However, in order to support its CPLR § 510(3) motion, defendant must demonstrate "that the convenience of material witnesses would be better served by the change" ( Cardona v. Aggressive Heating, 180 AD2d 572, 580 NYS2d 285 [1st Dept., 1992]). To do so, defendant must satisfy the following five criteria:
"(1) the identity of the proposed witnesses, (2) the manner in which they will be inconvenienced by a trial in the county in which the action was commenced, (3) that the witnesses have been contacted and are available and willing to testify for the movant, (4) the nature of the anticipated testimony, and (5) the manner in which the anticipated testimony is material to the issues raised in the case." Id. at 572; Rodriguez-Lebron v. Sunoco, Inc. , 18 AD3d 275 , 795 NYS2d 26 (1st Dept., 2005); Tricarico c. Cerasuolo, 199 AD2d 142, 605 NYS2d 84 (1st Dept., 1993); Martinez v. Dutchess Landaq, Inc., 301 AD2d 424, 754 NYS2d 5 (1st Dept., 2003).
In the instant motion, defendant only summarily alleges that the majority of witnesses are in Suffolk County. In its reply affirmation, defendant for the first time provides some specific information about witness convenience when it identifies Mr. James Angelidis, manager of the Blue Haven Motel at the time of plaintiff's accident, as a material witness who would be inconvenienced by a trial in New York County.
However, when determining a CPLR § 510(3) motion to change venue grounded on witness convenience, convenience of witnesses who are either parties to the action or employees of a party to the action is generally not considered ( Gissen v. Boy Scouts of America , 26 AD3d 289 , 290-91, 811 NYS2d 20, 21-22 (1st Dept., 2006); Wecht v. Glen Distributors CO., 112 AD2d 891, 892, 493 NYS2d 313 (1st Dept., 1985); Gerber v. B.C.R. Hotel Corp., 10 AD2d 956, 201 NYS2d 749 (2nd Dept., 1960); Cilmi v. Max E. Greenberg, Trager, Toplitz Herbst, 273 AD2d 266, 710 NYS2d 902 (2nd Dept., 2000)). When determining defendant's CPLR § 510(3) motion, the court is not required to evaluate the convenience of Mr. James Angelidis, the defendant's employee who is an alleged material witness. A change of venue grounded on this statutory provision is similarly unavailing.
Accordingly, it is hereby
ORDERED that defendant's motion to change venue is denied in its entirety.
Counsel for the parties are directed to appear for a preliminary conference on August 12, 2008 at 9:30 a.m., 111 Centre Street, Room 1127B, New York, New York.
This constitutes this court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties.