Opinion
INDEX NO. 150665/2018
03-27-2019
LONNY LEVITZ, JENNIFER WALTHER Plaintiffs, v. MORGAN FUEL & HEATING CO., INC., D/B/A BOTTINI FUEL, Defendant.
NYSCEF DOC. NO. 46 PRESENT: HON. LOUIS L. NOCK Justice MOTION DATE 1/4/2019 MOTION SEQ. NO. 002
DECISION AND ORDER
LOUIS L. NOCK, J.
Upon e-filed documents numbered 32-44, defendant's motion for an order, pursuant to CPLR 510, 511, changing the place of trial of this action to Greene County within the State of New York is granted in accord with the following memorandum.
BACKGROUND
Plaintiffs jointly own a home in Palenville, New York, which is located in Greene County within the Catskill Region of the State of New York (see, Complaint ¶ 2). Defendant Morgan Fuel & Heating Co., Inc., is a New York corporation maintaining its offices in Wappinger Falls, New York - located in Dutchess County (see, Summons), nearly cornering Greene County. Plaintiffs brought this action here, in New York County, where they also have a home, alleging that defendant was contracted by them to service all the physical aspects of the heating system serving their Greene County home (see, Complaint, passim). Specifically, and only in connection with plaintiffs' Greene County home - not their New York County home - it is alleged that defendant was contracted to perform a wide array of services in connection with the "boiler," "heating systems," "oil tanks," "oil lines," and "oil lines that carried oil from the oil tanks to the boiler" (Complaint ¶¶ 10-15). Those services included duties to "maintain," "repair," "replace any defective or inadequate parts," "replace any defective or inadequate portions," and "inspect" (id., ¶¶ 16-35). Defendant is also alleged to have been under a duty to deliver oil and to notify of any problems with any aspect of the above-specified physical aspects of the Greene County home's entire heating system (id., ¶¶ 11, 35-40).
The complaint alleges that defendant failed in its contractual duties, including construction, shoring, equipping, guarding, arranging, and operating activities necessary to the performance thereof (id., ¶ 45 [a]), leading to hazardous conditions at the Greene County home (id., ¶ 45 [c]). No allegation of physical injury to the plaintiffs - occurring in this county, or elsewhere - is alleged. The entire complaint speaks solely of the conditions of the physical aspects of the Greene County home's heating system and its constituent parts (see, id., passim), and seeking damages in connection with same.
Subsequent to the filing and service of the summons and complaint, defendant filed and served a Demand for Change of Place of Trial to Greene County, pursuant to CPLR 511. However, plaintiffs have not heeded that demand; hence, the instant motion for an order that would effect such change, pursuant to CPLR 510.
DISCUSSION
"The general rule is that where a transitory action is involved, all other things being equal, the case should be tried in the county where the cause of action accrued, where there is a preponderance of witnesses, where the convenience of such witnesses would be best served and where the ends of justice would be promoted by trying the action there" (Thomas v Smalls, 121 AD2d 622, 623 [2d Dept 1986]. See also, Ryan-Avizienis v JBEW Bar Corp., 121 AD3d 579 [1st Dept 2014] [reversing a denial of a motion to change venue upon finding that the alleged events occurred out-of-county and no persuasive factors of convenience existed to keep the case in-county, even though the plaintiff resided in-county]).
In the instant case, there can be no doubt that the determinative factors all point to a transfer of venue to Greene County. In addition to the most obvious point, that the literal res which underlies this case is the physical heating system of a piece of Greene County real estate: movant has cogently identified important non-party witnesses proximate to the locus of events in Greene County whose far distance from New York City would place an unnecessary burden on them. Those witnesses are:
• Jacqueline Trosclair, Jess Hicks, and Adam Scheu: three people involved in a request to remediate an oil spill at plaintiffs' Greene County home - palpably relevant to the instant claims and their possible defense (see, Complaint, passim). Ms. Trosclair is located in Wappinger's Falls, New York - in Dutchess County, which nearly corners Greene County, and Messrs. Hicks and Scheu are currently located in that general, further-upstate, area; and(See, Affirmation of Kenneth C. Gobetz, Esq., dated October 24, 2018 [the "Gobetz Aff."], ¶¶ 7-11 & Ex. 3.)
• David Pickett, the New York State Department of Environmental Conservation Program Specialist charged with overseeing a clean-up of oil released from plaintiffs' Greene County property - again, palpably relevant to the instant claims and their possible defense (see, Complaint, passim). Mr. Pickett is located in Schenectady, New York- not far from Greene County where he made observations culminating in an official report bearing his name.
The subject of this lawsuit - plaintiffs' Greene County home - is approximately 114 miles away from here (Gobetz Aff. ¶ 6). Nonparty witnesses who very reasonably appear to be critical to acquiring an understanding of underlying events are either in Dutchess County or Schenectady County. In Mr. Pickett's case, he would be required to travel 163 miles to get here (id., ¶ 10). The defendant - Morgan Fuel & Heating Co., Inc. - is in Tannersville, New York, situated in Greene County (id., ¶ 12 & Ex. 4). Such circumstances militate strongly in favor of changing venue to Greene County (e.g., Ryan-Avizienis, supra), in addition to the equally important factor of focusing on the locus where the alleged occurrences took place (see, id.; Lopez v Chaliwit, 268 AD2d 377 [1st Dept 2000]), seeing as plaintiffs' very-own real property forming the factual backdrop of this entire case, as well as the pertinent fuel pipeline that serves it, are situated in none other than Greene County.
The First Department case of Lloyd v National Propane Corp. (271 AD2d 202 [1st Dept 2000]) is particularly germane. There, the Appellate Division, First Department, reversed a denial of change of venue in a case involving a natural gas leak in real property located out-of-county. Plaintiffs in the instant case cannot and do not explain how their circumstances - similarly involving a fuel leak in real property out-of-county - is distinguishable, in fact or in principle, from said First Department decision, which reversed a denial of change of venue to the county where the events occurred and witnesses are situated (see also, Katz v Goodyear Tire & Rubber Co., 116 AD2d 506 [1st Dept 1986] [unanimously reversing a denial of change of venue after careful balancing of all relevant factors, including the locus of nonparty witnesses and, of course, the physical location of the alleged events]).
Again - the most compelling factor here is the very res of the lawsuit - the Greene County home's physical heating system. It is not inconceivable - and perhaps probable - that necessary evidence must be gleaned from physical inspections by a jury of the actual "boiler," "heating systems," "oil tanks," "oil lines," and "oil lines that carried oil from the oil tanks to the boiler" that the complaint in this transitory action so repeatedly talks about (Complaint ¶¶ 10-15). Such an inspection would be completely authorized under CPLR 4111-c. This court cannot imagine anything more disruptive to the management of a trial than the need to transport a New York County empaneled jury to Greene County - and perhaps multiple times.
In addition, the very fact of plaintiffs' ownership of the real property in Greene County is an independent factor favoring transfer, as well as the out-of-county locus of nonparty witnesses (e.g., Vered v Wittenberg, 138 AD3d 646 [1st Dept 2016]. See also, Ford v Servistar Corp., 133 AD2d 23 [1st Dept 1987] [change of venue was warranted on account of the fact that the occurrences took place out-of-county and the plaintiff and defendants had residences in that out-of-county venue]).
Plaintiffs' counsel posits, incredibly, that: (i) a case such as this, involving the physical aspects of an oil heating system, with all its constituent parts, does not require the type of testimony that nonparty witnesses Trosclair, Hicks, Scheu, and Pickett are likely to testify about; and that, in any event; (ii) their traveling over 100 miles to this county to render that testimony, perhaps over a course of days, is not a significant factor (see, Affirmation of William Hackwelder, Esq., dated December 28, 2018, passim). To the extent said counsel cites any authority to try and support his posited view, he ignores other very significant factors specifically present in this case; to wit: (i) this involves Greene County real property; (ii) this involves physical aspects of the heating system serving that Greene County real property; (iii) the plaintiffs' are the owners of that Greene County real property; and (iv) a site inspection of said heating system at said real property by a New York County empaneled jury - possibly more than once - would be ludicrously wasteful and terribly disruptive to trial management, to the detriment of jurors and of all concerned.
The court notes that prior to the instant motion, defendant had filed a motion to dismiss the complaint (seq. no. 001), which was denied in part by decision and order of Hon. Barbara Jaffe, dated September 25, 2018. Nothing found or held in that decision prevents the disposition stated in this decision.
Based on the foregoing observations, the motion by defendant for an order to change the venue of this action to the Supreme Court of the State of New York, County of Greene, pursuant to CPLR 510, 511, is granted.
Accordingly, it is
ORDERED that the defendant's motion for an order to change the venue of this action to the Supreme Court of the State of New York, County of Greene, is granted; and, accordingly, it is further
ORDERED that defendant, through its counsel, shall serve a copy of this decision and order on the Office of the Clerk of the County of New York no later than 20 days from the date hereof; and it is further
ORDERED that, upon the service of a copy of this decision and order upon the Office of the Clerk of the County of New York, said Office will deliver all papers related to this action, including certified copies of any minutes that may already have been taken, to the Office of the Clerk of the County of Greene within the State of New York no later than 30 days from the date of said service.
This shall constitute the decision and order of the court. 3/27/2019
DATE
ENTER:
/s/ _________
LOUIS L. NOCK, J.S.C.