I received this email from Richard S. Jaffe, Esq. of the Law Office of Cohen & Jaffe, LLP:
This case was in the nylj. I thought it might be significant to your readers when they are suing entities like mvaic who, as of late, have been trying to move cases to ny county. Also, of course, it is applicable where the city of new york or the nycta is being sued for nf benefits.
Moore v. City of New York, 10464/07
Decided: November 19, 2007
Justice Jack M. Battaglia
KINGS COUNTY
Supreme Court
It is undisputed that Plaintiff never signed a stipulation to change venue to Richmond County, and Defendant failed to move to change the venue within the required fifteen days of service of its demand to change venue. As such, to the extent that Defendant’s motion is treated as one to change venue on the ground that Plaintiff’s choice of venue was improper, it is untimely under the statute. (See Obas v. Grappell, 43 AD3d 431, 431 [2d Dept 2007]; Horowicz v. RSD Transportation, 249 AD2d 511, 511 [2d Dept 1998]; Pittman v. Maher, 202 AD2d 172, 174 [1st Dept 1994].)“When such motion is untimely it is addressed to the court’s discretion rather than based on right.” (See Horowicz v. RSD Transportation, 249 AD2d at 511; Matter of D.M.C. Construction Corp v. A. Leo Nash Steel Corp., 70 AD2d 635, 653 [1st Dept 1979]; Fitzpatrick v. Sullivan, Magee and Sullivan, Inc., 49 AD2d 902, 902 [2d Dept 1975].) A motion to change venue addressed to the discretion of the court must be considered on the grounds specified in CPLR 510(2) and (3) (see Matter of D.M.C. Construction Corp v. A. Leo Nash Steel Corp., 70 AD2d at 653), which are that “there is reason to believe that an impartial trial cannot be had in the proper county” and “the convenience of material witnesses and the ends of justice will be promoted by the change” (see CPLR 510[2] and [3].)
Defendant does not contend or submit any evidence that an impartial trial cannot be had in Kings County. (See CPLR 510[2].)
To obtain a change of venue under CPLR 510(3) on grounds that the convenience of material witnesses and the ends of justice will be promoted by the change of venue, a movant must meet four criteria. (See O’Brien v. Vasser Brothers Hosp., 207 AD2d 169, 172 [2d Dept 1995].) Movant must submit an affidavit (1) “containing the names, addresses and occupation of the prospective witnesses” (id.); (2) “disclose the Facts to which the proposed witnesses will testify at the trial, so that the court may judge whether proposed evidence of the witnesses is necessary and material” (id.); (3) “show that the witnesses for whose convenience a change of venue is sought are in fact willing to testify” (id. at 173); and (4) demonstrate “how the witnesses in question would in fact be inconvenienced in the event a change of venue were not granted” (id.)
Contrary to the City’s contentions, a movant must make such a showing even where, as here, Plaintiff designates venue in an improper county in violation of specific venue rules. (See e.g. Cruz v. City of New York, 251 AD2d 364, 365 [2d Dept 1998] [defendant City's motion to change venue pursuant to CPLR 510 in the court's discretion was denied based upon inadequate showing even though Plaintiff designated an action against the City in a county other than where the cause of action arose in violation of CPLR 504]; see also Charles v. New York City Tr. Auth., 277 AD2d 194, 195 [2d Dept 2000].)
Here, Defendant does not even attempt to make any showing with respect to CPLR 510(3). Rather, Defendant contends that “the convenience of paramedic, fire and police personnel who responded to the scene of the accident are given priority over that of plaintiff’s treating physicians and family members.” Without providing any of the required information regarding its proposed witnesses, Defendant also states that “[t]he preponderance, and possibly all, of the City’s witnesses are, on a daily basis, located in Richmond County.” Defendant’s general and conclusory allegations are clearly insufficient to establish the grounds necessary for a discretionary change of venue. (See e.g. Cruz v. City of New York, 251 AD2d at 365; compare Kennedy v. C.F. Galleria at White Plains, L.P., 2 AD3d 222 [1st Dept 2003].)