Opinion
Index No. 514109/2020 Mot seq. Nos. 001 002 003
05-09-2022
TIMOTHY BRAVE, Plaintiff, v. THE CITY OF NEW YORK, LITTLE FLOWER CHILDREN AND FAMILY SERVICES OF NEW YORK, (F.KA. LITTLE FLOWER CHILDREN'S SERVICES OF NEW YORK), THE LITTLE FLOWER UNION FREE SCHOOL DISTRICT, THE BOARD OF EDUCATION OF LITTLE FLOWER UNION FREE SCHOOL DISTRICT, and BARRY J. WIGGINS, Defendants.
Unpublished Opinion
DECISION AND ORDER
DEBORAH A. KAPLAN, J.S.C.:
Motion sequence numbers 001, 002, and 003 are consolidated for disposition.
In motion sequence number 001, defendants The Little Flower Union Free School District (the School District) and The Board of Education of Little Flower Union Free School District (the Board of Education) move for an order: (i) pursuant to CPLR 504 (2), 511, and 510, to change the venue of this action to Suffolk County; and (ii) pursuant to CPLR 3211 (a) (7). to dismiss the fourth, fifth, and part of the second causes of action asserted in the complaint against these defendants.
In what is designated as motion sequence number 002, plaintiff Timothy Brave (plaintiff) cross-moves for an order, pursuant to CPLR 504, to change the venue to New York County.
In what is designated as motion sequence number 003, defendant The City of New York (the City) cross-moves for an order, pursuant to CPLR 504 (3), 510 (1) and 511, to change the venue of this action to New York County.
The District and the Board argue that the venue should be changed to Suffolk County because: (i) their principal place of business is located in Suffolk County; (ii) no written consent to change venue was ever filed by Plaintiff or the City: (iii) the City waived its right to bring a motion to change venue since it did not do so within 15 days of filing a demand: and (iv) any venue other than Suffolk County would be inconvenient for the District and the Board.
Plaintiff and the City argue that the venue should be changed to New York County. Plaintiff argues that the New York City is the proper venue because the City made a timely demand to change venue, and the parties agreed to change venue to New York County prior to the subject motion being filed. Even if the court finds that the City waived its right to change the place of trial plaintiff argues that the Court should exercise its discretion to change venue to New York County. In support of this argument, plaintiff contends that New York City is the more centralized, accessible location, and that many of the events allged arose in New York City. Plaintiff refutes the District and the Board's points on why Suffolk County is the proper venue. The City's arguments are similar to those made by plaintiff.
Defendant Little Flower Children and Family Services of New York (the Agency) does not oppose the transfer of venue to Suffolk County, but requests that, pursuant to CPLR 504 (3), the motion be removed from Kings County and transferred to New York County should the District and the Board's motion be denied because the cause of action arose outside of New York City.
CPLR 510 (1) permits a court, upon motion, to change the place of trial of an action where "the county designated for that purpose is not a proper county" (CPLR 510 [1]). Pursuant to CPLR 511, a defendant seeking to change the place of trial upon the ground of improper venue, "shall serve a written demand that the action be tried in a county he specifies as proper" (CPLR 511 [b]). The demand "shall be served with the answer or before the answer is served" (CPLR 511 [a]).
This statute further provides:
'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. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper"(CPLR 511 [b]).
Various provisions establish what is "a proper county'" for purposes of a motion to change venue under CPLR 510(1). Where venue is based on residence of a party, CPLR 503 (a) provides, in relevant part, "[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced." For actions against school districts, CPLR 504 (2) provides, in relevant part, that the "place of trial . . . shall be: . . . in the county in which such . . . school district or district corporation is situated." Actions against the City of New York shall be "in the county within the city in which the cause of action arose, or if it arose outside the city, in the county of New York" (CPLR 504 [3]). As a result, a defendant that qualifies under CPLR 504 and fulfills the time requirements of the "demand" procedure pursuant to CPLR 511 is entitled to a change of venue to their specified count)' as a matter of right (see e.g. Llorca v Manzo, ISA A.D.2d 396, 397 [2d Dept 1998]).
In instances of conflicting venue provisions, "the court, upon motion, shall order as the place of trial one proper under this article as to at least one of the parties" (CPLR 502; see also Meyers v New York Slate Div. of Housing & Community Renewal, 32 A.D.2d 818, 818 [2d Dept 1969]).Before considering whether CPLR 502 is applicable, the court must first determine whether the "demand" procedure has been satisfied by the defendants.
Plaintiff filed the summons and complaint on August 4, 2020. On September 21. 2020, the City filed an answer and a stipulation entitled "Stipulation to Change Venue," which was digitally signed only by the City; the plaintiffs signature line was blank {the proposed stipulation) (see NYSCEF Doc No. 12). The City did not make a written demand pursuant to CPLR 511 (b). According to email correspondence dated October 28, 2020 between plaintiff and the City, both parties agreed to a change of venue to New York County via stipulation (NYSCEF Doc No. 44 [12/16/20 Mitchell affirmation in opp, exhibit D]). The City has submitted the stipulation as an exhibit to its opposition papers (see NYSCEF Doc No. 43). The stipulation, which is the proposed stipulation is not in proper form as: (i) it is only signed by Plaintiff and does not include a date of execution; (ii) does not provide that it may be executed in duplicates; and (iii) was not filed with the Court prior to the filing of the subject motion. Even if the Court were to consider the stipulation, the emails confirming the plaintiff and the City's consent to enter into it are dated October 28, 2020, or thirty-seven days after the City originally filed the proposed stipulation (NYSCEF Doc No. 44).
According to the procedure outlined in CPLR 511 (b), not only did the City fail to make a written demand for a change of venue, but, in the absence of plaintiff s consent, it also failed to "move to change the place of trial within fifteen days after service of demand" (CPLR 511 [b]]. Therefore, the City is not entitled to a change of venue as a matter of right (see Thomas v Guttikonda, 68 A.D.3d 853, 854 [2d Dept 2009]; see also Jeffrey L. Rosenberg & Assoc, LLC v Lajaunie, 54 A.D.3d 813, 816 [2d Dept 2008]).
On August 25. 2020. the District, the Board, and Plaintiff executed a stipulation to extend the District and the Board's time to answer to October 30, 2020 (NYSCEF Doc No. 22). On October 22, 2020, the District and the Board filed a written demand for change of venue (NYSCEF Doc No. 15). On October 27, 2020, plaintiff filed an affirmation in response to the District and the Board's demand for change of venue, in which plaintiff opposed the change of venue to Suffolk County and argued instead for the venue to be changed to New York County (NYSCEF Doc No. 16). On October 28, 2020, the District and the Board filed the subject motion, seeking, among other things, to change venue to Suffolk County (NYSCEF Doc No. 17).
In the complaint, plaintiff states that "[v]enue of this proceeding in Kings County is appropriate pursuant to CPLR §504 because it is the county within the City of New York in which the cause of action arose" (complaint. ¶ 4). The cause of action, however, did not arise in Kings County because the alleged abuse took place at a residential treatment center located in Wading River, Suffolk County (see id., ¶¶ 13-14, 35-66). It appears that no party resides or is situated in Kings County. Hence, Kings County is not the proper venue (see Llorca v Manzo, 254 A.D.2d 396, 397). In fact, the plaintiff himself is seeking a change of venue to New York County.
As previously discussed, the City did not follow the procedure detailed in CPLR 511 (a) and (b) and is therefore not entitled, as of right, to a change of venue to New York County (see Thomas v Guttikonda, 68 A.D.3d at 854; see also Jeffrey L. Rosenberg & Assoc, LLC v Lafaunie, 54 A.D.3d at 816). The District and the Board, on the other hand, made a timely written demand for a change of venue to Suffolk County and brought a timely motion for that relief (see CPLR 511 [a-b]). The District has demonstrated that it is situated in Suffolk County (see 10/28/20 Dean aff, ¶ 3 [NYSCEF Doc No. 27]), which renders Suffolk a proper county (CPLR 504 [2]). Accordingly, the District is entitled, as of right, to a change of venue to Suffolk County (see e.g. Llorca v Mamo, 254 A.D.2d at 397).
The court notes that even if the District was not entitled to the change of venue as of right and the issue was committed to the discretion of the court, the court would still determine that Suffolk County is the proper venue given that: the cause of action arose there; and the District, the Board, and the Agency are situated, or have their principal places of business, there (see e.g. NYSCEF Doc No. 21).
In light of this determination, the court finds that that branch of the District and the Board's motion to dismiss certain causes of action should be addressed by Suffolk Country Supreme Court. Hence, this request is denied without prejudice, with leave to renew upon the transfer to Suffolk County.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that, in motion sequence number 001, the motion of the defendants The Little Flower Union Free School District and The Board of Education of Little Flower Union Free School District is granted to the following extent:
(i) Application for a change of venue is granted and venue of this action is changed from this Court to the Supreme Court, County of Suffolk;
(ii) the Clerk of this Court shall transfer the file in this action to the Clerk of the Supreme Court. County of Suffolk and shall mark his records to reflect such transfer;
(iii) within 30 days from entry of this order, counsel for movant shall serve a copy of this order with notice of entry upon the Clerk of this Court, shall pay the appropriate transfer fee, if any, and shall contact the staff of the Clerk of this Court and cooperate in effectuating the transfer;
(iv) the Clerk of the Court shall coordinate the transfer of the file in this action with the Clerk of the Supreme Court, Suffolk County, so as to ensure an efficient transfer and minimize insofar as practical the reproduction of documents, including with regard to any documents that may be in digital format:
(v) such service upon the Clerk of this Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing"" page on the court's website at the address www.nycourts.gov/supctmanh);and the motion is otherwise denied without prejudice, with leave to renew upon the transfer of this action to Suffolk Country; and it is further
ORDERED that, in motion sequence number 002, the cross motion of the plaintiff is denied; and it is further
ORDERED that, in motion sequence number 003, the cross motion of the defendant The City of New York is denied.
This constitutes the decision and order of the court.