Opinion
April 13, 1971
Order, Supreme Court, New York County, entered on September 2, 1970, which consolidated the two actions herein and ordered the removal to the Supreme Court, New York County of the action pending in the Supreme Court, Orange County (Action No. 2), and ordered that trial of the consolidated action be held in New York County, modified on the law, the facts and in the exercise of discretion, to direct that Action No. 1 be removed to Orange County and that trial of the consolidated action be held in Orange County, and, as so modified, affirmed. Appellants shall recover of respondents $30 costs and disbursements of this appeal. The first action was brought in New York County; the second was brought in Orange County. No objection is raised as to the consolidation of the two actions, and the sole question involved herein is the appropriate venue of the consolidated action. "Although as a general rule the venue of the action first commenced should be deemed the place of joint trial (3 Carmody-Wait 2d, New York Practice, § 17.24; Padilla v. Greyhound Lines, 29 A.D.2d 495; Weiss v. City of New York, 27 A.D.2d 709; Rae v. Hotel Governor Clinton, 23 A.D.2d 564), special circumstances may properly be found to negate this choice." ( Boyea v. Lambeth, 33 A.D.2d 928, 929.) The record amply supports a conclusion that the circumstances herein warrant a direction that the place of trial of the consolidated action be in Orange County. The record shows that Orange County is the county "where the preponderance of witnesses reside." ( Lotz v. Van Hall, 35 A.D.2d 576, 577.) Moreover, "A much earlier trial in regular order can be had in [Orange] than in New York County." ( Padilla v. Greyhound Lines, 29 A.D.2d 495, 498.) We also note that "the second action herein is deeper and broader in scope than the first" (3 Carmody-Wait 2d New York Practice, § 17.24, p. 149), and that the issues central to both actions involve events which occurred in Orange County, the place where the land is located. (See Boyea v. Lambeth, supra.) Accordingly, it was an improvident exercise of discretion to deny a transfer of the consolidated actions to Orange County.
Concur — McGivern, J.P., Markewich, Nunez, McNally and Tilzer, JJ.