The issue in this case is whether CPLR 504(3) mandate that an action against the City of New York must be brought and venued only in the county where a “continuing tort” first occurred; or can the action be commenced by the plaintiff in any County in the City of New York where the tort continued.
Venue, the proper situs of a proceeding, does not involve the jurisdiction of the court to hear and determine the action, and venue issues, unlike those involving personal and subject matter jurisdiction, do not result in the enlargement or impairment of substantive rights. Although personal and subject matter jurisdiction require compliance with constitutional mandates, venue issues are not so burdened, and the situs of an action may be located anywhere within the geographical jurisdiction of the court as deemed appropriate by applicable statute or rule. The commencement of an action or proceeding in an inappropriate county territorial subdivision of the Supreme Court of the State of New York, would not, with one exception not here relevant,1 result in a dismissal of the action, but would merely require a “change of venue,” i.e., a transfer of the action to the appropriate county. It appears that the only mechanisms for changing venue are by consent of the parties, or by an order of the court rendered pursuant to a motion.
For the Supreme Court of the State of New York, the prescribed venue of an action is now codified at and statutorily authorized by Article 5 of the CPLR. Unless the parties have by prior written agreement fixed the venue of an action, CPLR Article 5 permits the plaintiff the right to make the initial selection of an appropriate venue.
CPLR 509 provides that “notwithstanding any provisions of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order [of the court] upon motion, or by consent.” It is settled that upon a motion by defendant to change said venue defendant bears the burden to establish that the plaintiff’s choice of forum is not appropriate, or that other factors and circumstances require that venue be changed. In addition, it is settled that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”
The proper venue for actions against public entities is set forth in CPLR 504, which states in relevant part, that: “Notwithstanding the provisions of any charter heretofore granted by the state and subject to the provisions of subdivision (b) of section 506, the place of trial of all actions against counties, cities, towns, villages, school districts and district corporations or any of their officers, boards or departments shall be, for: 3. the City of New York, in the county within the city in which the cause of action arose, or if it arose outside of the city, in the county of New York.”
Undoubtedly, an action against the City of New York must be brought in the county where the action arose, if it arose within the City. It must be noted however, that CPLR 504 is only a venue statute and it provides no guidance to a court in ascertaining where a cause of action “arose”. Thus, when disputes arise as to venue, the court must resolve same on a case by case basis.
In any event, it does not seem to be disputed that (apart from the venue issue) a continuous tort, such as a false imprisonment, occurs and continues in every county to which a claimant is taken and victimized. However, some courts construing statutes such as CPLR 504 have reasoned that, for purposes of venue, the word “arose” must be read to mean only where the first act occurs which provides the basis for the cause of action.
In any event, this Court now concludes that, in actions against the City of New York (for continuing torts such as false imprisonment), venue can be properly placed by plaintiff in any County in the City of New York in which the tort occurs or continues. In other words, the Court concludes that the tort continues to “arise” in every venue where it is committed. The Court finds that since one of the alleged torts (false imprisonment) “arose” (at least in part) in the County of the Bronx; the action was properly commenced by plaintiff in Bronx County; and thus this court has the obligation and authority to decide the merits of the personal injury motion and cross-motion.
Despite the above conclusion, the defendant’s motion to change venue to Queens County is granted, but not upon the grounds asserted by defendant.
There is another more compelling reason to grant the defendant’s motion to change venue, that is, to prevent forum shopping. It appears that since the closure of the detention centers in Queens and Brooklyn, a majority of persons arrested for crimes allegedly committed in those counties are temporarily imprisoned in Bronx County on Riker’s Island2 pending prosecution and trial in the County where they were arrested. If temporary imprisonment in Bronx County, pending prosecution and trial in another county, was the only factor justifying venue, Bronx County could conceivably be inundated with actions and claims which, in essence, almost entirely “arose” in another county. Such an outcome would undermine and be in derogation of the policy objective underlying CPLR 504 (3).
The court notes that in this case the crime was allegedly committed in Queens by a Queens’s resident, and all of the alleged torts (except for false imprisonment) “arose” in their entirety in the County of Queens. Plaintiff was arrested and initially imprisoned in Queens, and fully prosecuted in that County. It is presumed that all records concerning these events are located in Queens, and that it may be more convenient for witnesses to appear there. Had the circumstances been different (for example, if plaintiff had been arrested and initially detained in Queens based on a crime committed in Bronx County; and he was imprisoned and fully prosecuted in the Bronx), the court would not be inclined to grant defendant’s motion to change venue to the County of Queens, despite the fact that the arrest and initial detention (false imprisonment) first “arose” in Queens.
Thus, a change of venue to the County of Queens is proper and appropriate in the case under consideration. Before doing so, however, since the action was properly commenced in Bronx County in the first instance, this Court must fulfill its obligation pursuant to GML 50-e(7) and must therefore consider and determine plaintiff’s application to file a late notice of claim.
For the reasons stated above, the Court grants plaintiff’s motion to file a late notice of claim (a copy of which is annexed to the application) and deems the same to have been served timely – nunc pro tunc; and the Court also grants the defendant’s cross-motion, however, only to that portion which seeks a change of venue to Queens County; and is otherwise denied.