Opinion
INDEX NO. 152666/2018
03-27-2019
TINA WILLIAMS, Plaintiff, v. WESTLAND SOUTH SHORE MALL LP and/or WESTFIELD SOUTH SHORE MALL, WESTLAND SOUTH SHORE MALL L.P., WESTFIELD LLC, WESTFIELD AMERICA, INC., WESTFIELD CORPORATION INC., WESTFIELD AMERICA SHOPPING CENTER, LLP, and WESTFIELD CORPORATION LTD, Defendants.
NYSCEF DOC. NO. 56 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 18, 19, 20 were read on this motion to CHANGE VENUE. Upon the foregoing documents, it is ordered that the motion is denied.
In this Labor Law action, defendants Westland South Shore Mall LP and/or Westfield South Shore Mall, Westland South Shore Mall, L.P., Westfield LLC, Westfield America, Inc., Westfield Corporation Inc., Westfield America Shopping Center, LLP, and Westfield Corporation LTD (collectively "defendants") move, pursuant to CPLR 510(1) and (3), to change the venue of this action from New York County to Suffolk County. Plaintiff Tina Williams ("Williams") opposes the motion. After oral argument, and after a review of the parties' papers and the relevant statutes and caselaw, it is ordered that the motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff commenced the instant action in New York County on March 26, 2018 by filing a summons and complaint. (Doc. 13.) In the complaint, plaintiff alleges, inter alia, violations of New York Labor Law §§ 200, 240(1), and 241(6). (Id. at 28-34.) Defendants filed their answer on April 12, 2018. (Doc. 14 at 4-9.)
Defendants now move, pursuant to CPLR 510(1) and (3), to change the venue of this action from New York County to Suffolk County. In support of their motion, defendants argue that venue should be transferred because plaintiff's accident occurred in Suffolk County and all of the witnesses to the incident reside there. (Doc. 12 at 2-3.) Moreover, because plaintiff was treated for her injuries in Suffolk County, and because "[a]ny police that would have responded would have been from the Suffolk County Police Department" (id. at 3), defendants assert that New York County is an improper venue (id. at 4).
In opposition, plaintiff argues that the motion is untimely pursuant to CPLR 511(b) because defendants did not move to change venue within fifteen days after serving a demand to change venue. (Doc. 18 at 3.) Further, she maintains that the motion must be denied because one or more of the corporate defendants resided in New York County on the date that this action was commenced. (Id. at 2-4.)
LEGAL CONCLUSIONS:
CPLR 510(1) and (3) provide that a court, upon motion by a party, may transfer venue where "the county designated for that purpose is not a proper county" or where "the convenience of material witnesses and the ends of justice will be promoted by the change."
This Court determines that defendants' motion must be denied. As a preliminary matter, the motion is untimely. "A change of venue sought as of right on the ground that the county selected is an improper one must be sought by service of a demand (CPLR 511[a]) followed by a motion, if the demand is not acceded to, within 15 days after service thereof." (Philogene v Fuller Auto Leasing, 167 AD2d 178, 178-79 [1st Dept 1990].) Although defendants served a demand to change venue on April 12, 2018 (Doc. 14 at 33), the motion was not filed until June 20, 2018 (Doc. 11). Since defendants' motion exceeded the 15-day limit set forth in CPLR 511(b), it must be denied.
Second, CPLR 503(a) provides that "the place of trial shall be in the county in which one of the parties resided when it was commenced." It is a "well-established rule that a foreign corporation's designation of the location of its office in its statement filed with the Secretary of State constitutes a designation of its residence for venue purposes under CPLR 503(c)." (Johanson v J.B. Hunt Transp., Inc., 15 AD3d 268, 269 [1st Dept 2005].) Service was made in New York County and this Court has independently verified that defendant Westfield, LLC resides in New York County as designated in its statement with the New York Secretary of State. Change of venue is therefore improper under CPLR 510(1).
Third, in order to change venue as a matter of discretion under CPLR 510(3), the movant "must assert all of the following information: the names and addresses of the witnesses, the substance and materiality of their testimony relative to the issues in the case, that the witnesses have been contacted and are willing to testify on behalf of the movant, and the manner in which they will be inconvenienced by a trial in the county where the action was commenced." (Gissen v Boy Scouts of Am., 26 AD3d 289, 291 [1st Dept 2006].) Defendants failed to establish any of these factors. (Docs. 12, 20.) Thus, defendants are not entitled to a change of venue pursuant to CPLR 510(3).
Therefore, in light of the foregoing, it is hereby:
ORDERED that the motion to change venue by defendants Westland South Shore Mall LP and/or Westfield South Shore Mall, Westland South Shore Mall, L.P., Westfield LLC, Westfield America, Inc., Westfield Corporation Inc., Westfield America Shopping Center, LLP, and Westfield Corporation LTD is denied, and plaintiff Tina Williams' action shall proceed in New York County; and it is further
ORDERED that, within 30 days of the uploading of this order to NYSCEF, defendants' counsel is directed to serve a copy of this order, with notice of entry, on all other parties and on the Clerk of the Court; and it is further
ORDERED that all counsel shall appear for a previously scheduled status conference in this matter on July 9, 2019 at 80 Centre Street, Room 280, at 2:15 PM; and it is further
ORDERED that this constitutes the decision and order of the court. 3/27/2019
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.