Commercial Division Blog

Posted: October 7, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Hillary S. Zilz / Categories Commercial, Venue

Venue Cannot be Based on Domicile of Party Added to Action

On September 26, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Ahlin v. Lehr, Index No. 155191/2021, granting defendant’s motion for a change of venue from New York County to Westchester County, notwithstanding that the principal place of business of one of the parties was New York County because it was not a party when the action was commenced. The Court explained:

Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when the action was commenced, or in the county in which a substantial part of the events or omissions giving rise to the claim occurred (CPLR §503[a]). Venue may be changed by the court, upon motion, if the county designated for trial is not proper (CPLR §510[1]; CPLR 511[b]).

Here, the complaint does not set forth a basis for venue in New York County. Defendant Spot On Lighting, LLC is a domestic limited liability company with its principal place of business in Westchester County, New York (Aff. of Harold Lehr NYSECF doc. no. 10). Defendant Lehr was served with the summons and complaint on October 22, 2021 in Larchmont, New York (NYSCEF doc. no. 7). Both of those defendants are domiciled in Westchester County.  With regard to plaintiff, the complaint states only that plaintiff is a resident of New York State (NYSCEF doc. no. 1).

Plaintiff has not rebutted the assertion by defendants that he is not, nor ever has been, a resident of New York County (see, Aff. of Harold Lehr NYSECF doc. no. 10, para 11). Rather, plaintiff argues that venue in New York County is proper because New York County is the principal place of business for defendant Nulux, Inc. (NYSCEF doc. no. 43, para. 4). Nulux, however, was not a party when this action was commenced. Venue cannot be based upon the domicile of an entity that was not a party to the action when the action was commenced (see Searle v Suburban Propane Div. of Quantum Chem. Corp., 229 AD2d 988, 989, 645 N.Y.S.2d 205 [4th Dept 1996][the court rejected a designation of venue based upon an amended complaint filed subsequent to the commencement of the action that based venue on the residence of a newly added party]).

Courts have strict rules about where you can file an action.  Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning venue.