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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: October 5, 2018

Court Denies Motion to Change Venue

On September 18, 2018, Justice Masley of the New York County Commercial Division issued a decision inĀ Faustino v. Amin, 2018 NY Slip Op. 32347(U), denying a motion to change venue, explaining:

Under CPLR 503(a), venue is proper in either the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A defendant seeking to change venue bears the burden of establishing that the designated county is improper.

The Amin Defendants have failed to meet this burden. While the Certificates of Incorporation designate the nominal defendants Extra Butter and EB2 LLC’s principal places of business as Nassau and Suffolk County, respectively, residence, is only one path to establishing venue. In fact, the First Department has held that such a lone basis is insufficient to warrant a change of venue.

Nevertheless, plaintiff’s stated basis of his venue designation is not residence, but rather, the location of the events that allegedly gave rise to this action, which is permitted by CPLR 503(a). The factual allegations, contained in both the complaint and plaintiff’s CPLR 511 affidavit, that form the basis for this lawsuit make New York County the proper venue for adjudication of the alleged wrongdoing at Extra Butter’s flagship store in Manhattan.

The Amin Defendants also argue that plaintiff is precluded from sustaining this action in New York County because plaintiff forfeited his right by improperly designating venue in New York County in the first instance. It is true that when a plaintiff sues in an improper county, it forfeits its right to select venue if it offers no affidavit explaining the venue designation or rejecting defendants’ proposed venue; however, no such failure exists here. Plaintiff, pursuant to CPLR 511 (b), timely served an affidavit explaining the basis for venue and arguing against a transfer to Nassau County. The fact that plaintiff improperly stated EB2 LLC’s principal place of business in his complaint does not defeat the otherwise proper basis for venue under CPLR 503(a): the site of the events forming the lawsuit. Even if venue was improperly designated based on plaintiffs incorrect understanding of EB2 LLC’s principal place of business, the Amin Defendants’ requested venue in Nassau County cannot be justified on the sole basis of nominal defendant Extra Butter’s corporate residence.

The Amin Defendants’ alternative argument that this court use its discretionary authority under CPLR 510(3) is similarly unavailing. CPLR510 (3) permits a party to change the place of trial where the county designated is improper or where the convenience of the material witnesses and justice will be promoted by the change. To obtain a discretionary change of venue under CPLR 510(3), the moving party must provide detailed justification for such relief in the form of the identity and availability of proposed witnesses, the nature and materiality of their anticipated testimony, and the manner in which they would be inconvenienced by the initial venue.

The Amin Defendants have failed to make this requisite showing. The Amin Defendants’ principal contention is that Nassau County is the closest county to all parties, including plaintiff. However, geographic convenience, alone, is not dispositive for motions to change venue. Further, the record does not indicate that the witnesses were ever contacted about their alleged inconvenience, as required by CPLR 510(3). Failure to establish the requisite contact with witnesses, establish their willingness to testify, or the basis for their inconvenience constitutes a fatal deficiency to the movant’s burden.

(Internal quotations and citations omitted) (emphasis added).

New York procedural law dictates which county an action can be brought in. The rules are flexible, as this decision shows, but it is possible to run afoul of them and have a lawsuit transferred to a county you did not want to be in. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure where in New York an action may properly be brought.

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