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Holmes v. Davis3/24/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Defendants moves seeking an order pursuant to CPLR §§510 and 511 changing the venue of this action from Bronx County to Federal Court in either of the states within which the parties currently reside. It is alleged that pursuant to CPLR §503, the venue herein is improper. It is alleged that since neither of the parties reside within New York, the action should be venued in Federal Court. Plaintiff opposes the motion asserting that the action is venued properly because pursuant to CPLR §503, plaintiff, as a non-resident at the time the action was commenced, had the option of designating venue. As such plaintiffs assert that venue is proper. Moreover, for purposes of Federal jurisdiction, plaintiff asserts that the proper procedure would have been a removal of this action to Federal Court pursuant to 28 U.S.C. §1446(b). However, the time for that, plaintiff alleges has passed.
For the reasons that follow hereinafter, defendant's motion is hereby denied.
This case involves a motor vehicle accident in New York state. At the time of the accident, plaintiff was a resident of New York and defendant a resident of New Jersey. The action was commenced on September 29, 2004 and issue was joined when defendant interposed an answer on January 5, 2005. Along with an answer defendants served a demand to change venue. To date said demand has gone unanswered. The instant motion was made on January 5, 2005. According to the summons and complaint, plaintiff is a resident of Florida and defendant is a resident of New Jersey. Based on the summons, Bronx County was designated as the venue for this action because pursuant to CPLR §503, plaintiff had the right to choose the venue herein.
Venue
All things being equal, a transitory action should be tried where the cause of action arose. Clark v. New Rochelle Medical Center, 170 AD2d 271 (1st Dept. 1991); Kim v. Flushing Hospital and Medical Center, 138 AD2d 252 (1st Dept. 1988). Article 5 of the CPLR fixes the venue of certain actions based on a host of different factors, such as the type of action, the residence of the parties or the status of the party being sued. CPLR §503 prescribes venue in transitory actions based on the residence of the respective parties. CPLR §504 prescribes venue in actions against municipalities. CPLR §505 prescribes venue in actions involving public authorities. CPLR §510 sets forth the grounds for changing the venue of a particular action and CPLR §511 sets forth the procedure for seeking the change. CPLR §510 sets out three grounds warranting a change of venue.
CPLR §510(1) provides for a change of venue when the county designated is improper. A defendant seeking to challenge the chosen venue on grounds that said venue is improper must first comply with the requisites of CPLR §511, which requires that a demand to change venue be interposed with or prior to the service of an answer. Jason v. Dumel, 3 Misc 3d 1101(a) (Supreme Court, Kings County 2004). Thereafter, pursuant to CPLR §511, plaintiff must either agree to change the venue or interpose an affidavit indicating why the venue chosen is proper and why the proposed venue is improper. An action brought in the wrong county requires a venue change as a matter of right. Id. However, before such relief can be had, defendant is required, as mentioned above, to comply with CPLR §511. Id. When a defendant makes a motion seeking to change the venue pursuant to CPLR §510(1), the court must first determine, given the type of action, what venue provision govern
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