Agresta v. Envtl. Temperature Sys. LLC

Full title: FABRIZIO AGRESTA, Plaintiff v. ENVIRONMENTAL TEMPERATURE SYSTEM LLC…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

Date published: Jan 4, 2013

2012 N.Y. Slip Op. 33098 (N.Y. Sup. Ct. 2013)

Opinion

Index No. 100838/2012

01-04-2013

FABRIZIO AGRESTA, Plaintiff v. ENVIRONMENTAL TEMPERATURE SYSTEM LLC, Defendant

LUCY BILLINGS

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

Defendant moves to extend its time to demand a change of venue and to change the venue of County, because plaintiff's designation of New York County is without basis. C.P.L.R. §§ 510(1), 511(a) and (b). Although plaintiff was injured in New York County due to defendant's alleged negligence and designated venue here, C.P.L.R. § 509, where plaintiff was injured is not a basis for venue. C.P.L.R. § 503. Since the only party that resides in New York is defendant, which maintains its principal place of business in Nassau County, venue would lie there. C.P.L.R. § 503(a) and (c).

To change venue on that basis, defendant must serve a demand to change venue before or with service of an answer. C.P.L.R. § 511(a); Simon v. Usher, 17 N.Y.3d 625, 628 (2011); Herrera v. R. Conlev Inc., 52 A.D.3d 218 (1st Dep't 2008); Kurfis v. Shore Towers Condominium, 48 A.D.3d 300 (1st Dep't 2008); Singh v. Becher, 249 A.D.2d 154 (1st Dep't 1998). Defendant then may move to change venue within 15 days after service of a demand to which plaintiff fails to respond. C.P.L.R. § 511(b); Simon v. Usher, 17 N.Y.3d at 628; Banks v. New York State & Local Employees' Retirement Sys., 271 A.D.2d 252 (1st Dep't 2000); Singh v. Becher, 249 A.D.2d 154; Newman v. Physicians' Reciprocal Insurers, 204 A.D.2d 210 (1st Dep't 1994). Defendant must strictly comply with these time requirements. Collins v. Greenwood Mat. Corp., 25 A.D.3d 447, 449 (1st Dep't 2006); Banks v. New York State & Local Employees' Retirement Sys., 271 A.D.2d 252; LaMantia v. North Shore Univ. Hosp., 259 A.D.2d 294 (1st Dep't 1999); Philoqene v. Fuller Auto Leasing, 167 A.D.2d 178, 179 (1st Dep't 1990).

Here, defendant served its answer March 23, 2012, and its demand to change venue March 26, 2012. Defendant acknowledges that its demand was untimely, but maintains that the court may extend the time for the demand and then consider the motion to change venue.

The court's discretion regarding defendant's motion following an untimely demand to change venue, when based only on commencement of the action in a county outside C.P.L.R. § 503's scope, is limited to conformance with a contract provision regarding venue, policy dictates that place venue in another county, and consolidation. Newman v. Physicians' Reciprocal Insurers, 204 A.D.2d 210; Pittman v. Maher, 202 A.D.2d 172, 175 (1st Dep't 1994). See Herrera v. R. Conley Inc., 52 A.D.3d at 219; Kurfis v. Shore Towers Condominium, 48 A.D.3d at 301; Howard v. New York State Bd. of Parole, 5 A.D.3d 271, 272 (1st Dep't 2004); Banks v. New York State & Local Employees' Retirement Sys., 271 A.D.2d at 253. Otherwise the court may not grant the venue change when the demand was untimely. Herrera v. R, Conley Inc., 52 A.D.3d 218; Newman v. Physicians' Reciprocal Insurers, 204 A.D.2d 210; Pittman v. Maher, 202 A.D.2d at 175.

Defendant does not claim that plaintiff misled defendant as to the propriety of the venue he selected, which would absolve defendant's failure to comply with the statutory time frames. Kurfis v. Shore Towers Condominium, 48 A.D.3d 300; Peretzman v. Elias, 221 A.D.2d 192 (1st Dep't 1995); Pittman v. Maher, 202 A.D.2d at 175; Koschak v. Gates Constr. Corp., 275 A.D.2d 315, 316 (2d Dep't 1996) . See Collins v. Greenwood Mgt. Corp., 25 A.D.3d at 449; LaMantia v. North Shore Univ. Hosp., 259 A.D.2d 2 94; Philocrene v. Fuller Auto Leasing, 167 A.D.2d at 179. Rather than misleading defendants into believing venue was adequately premised, the complaint accurately and fully disclosed both parties' residences and thus the lack of basis for the designated venue. Defendant's failure to follow the statutory procedure deprives defendant of its right to a change and preserves plaintiff's right to his choice of venue. C.P.L.R. §§ 509, 511(b); Herrera v. R. Conlev Inc., 52 A.D.3d 218; Kurfis v. Shore Towers Condominium, 48 A.D.3d 300; Collins v. Greenwood Mgt. Corp., 25 A.D.3d at 449; Howard v. New York State Bd. of Parole, 5 A.D.3d at 272.

For these reasons, the court denies defendant's motion to the change venue of this action. C.P.L.R. § 511(b). This decision constitutes the court's order.

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LUCY BILLINGS, J.S.C.