Commercial Division Blog

Posted: January 9, 2018 / Categories Commercial, Venue

Action Brought in Improper Venue Transferred to Proper Venue

On November 6, 2017, Justice Platkin of the Albany County Commercial Division issued a decision in Belair Care Ctr., Inc. v. Cool Insuring Agency, Inc., 2017 NY Slip Op. 51941(U), transferring an action brought in an improper venue, explaining:

With respect to a domestic corporation or a foreign corporation authorized to conduct business in New York, venue properly is laid in the county in which its principal office is located. Appellate authority consistently has interpreted principal office to mean the corporation's principal place of business, as specified in its certificate of incorporation or certificate of authority.

. . .

Plaintiffs' reliance on CPLR 506(b) similarly is unavailing, as that statute, by its terms, pertains to venue in a special proceeding against a body or officer. As this is a commercial action for damages against insurance brokers and not a special proceeding brought against a body or officer, any connections that this case may have to Albany County or the WCB are of no moment.

In their opposition, plaintiffs effectively concede that no party to this action was a resident of Albany County at the time of commencement. Instead, plaintiffs make two additional arguments in support of their contention that Albany County is a proper venue: (1) that one or more plaintiffs in the Member Action was a resident of Albany County at the time of commencement (see CPLR 503); and (2) the Broker Defendants stipulated to venue in this county.

. . .

[P]laintiffs cannot establish venue under CPLR 503 by relying upon the residence of those HITNY Plaintiffs who are not, and never were, parties to the Broker Action. As discussed previously, this action is separate and distinct from the Member Action, which continues to be prosecuted under a different index number. Thus, plaintiffs have failed to substantiate their contention that Albany County is a proper venue for the case based upon the residence of the parties at the time of commencement.

. . .

Based on the foregoing, the Court concludes that plaintiffs' choice of venue was improper and they have accordingly forfeited their right to select the venue to this action. Accordingly, the branch of the Broker Defendants' motions seeking to transfer venue must be granted.

(Internal quotations and citations omitted).