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New York Appellate Court Rules that Date of Filing Controls Change of Venue Argument


For the Supreme Court of the State of New York, the prescribed venue of an action is codified at and statutorily authorized by Article 5 of the CPLR. The statutory scheme provides that “notwithstanding the 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” (CPLR §509). As such, 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.

Pursuant to CPLR §503(a), venue is predicated upon the residence of one of the parties at the time the action is commenced, not where the cause of action arose. However, CPLR §510(1) provides that the “court, upon motion, may change the place of trial of an action where: the county designated for that purpose is not a proper county.” And, it is settled that upon a motion by defendants to change said venue, defendants bear 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”.

Here, defendants fail to demonstrate that plaintiffs move to Pennsylvania shortly after commencing the instant action evidences a lack of intent to retain New York County as a permanent residence sufficient to defeat New York County as a basis for venue.

First Department case law, which is controlling over this Court, makes clear that for the purpose of deciding whether the placement of venue is proper “the controlling date is the date of commencement of the action”. The First Department also makes clear that in the absence of evidence that a plaintiff’s residency was “contrived for the sole purpose of obtaining an advantageous venue,” it is proper to conclude that the plaintiff was a bona fide resident of the county wherein he or she resided at the time the action was commenced.

Further, the First Department points out that “a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs residence at the time of the commencement of the injury action”. In reversing the trial court, the First Department held, inter alia, that “a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs’ residence at the time of the commencement of the action”.

The case law defendants cite is distinguishable. In the 1978 case, the defendant appealed an order denying his motion to change the venue of the action from Kings County to Westchester County. The plaintiff had maintained a home in Westchester County for 20 years, his two children attended public school in Scarsdale, he was a registered voter in Scarsdale, and he filed income tax returns as a resident of Scarsdale, He also claimed “exclusive use” of a bedroom in his sister’s and brother-in-law’s home in Kings County. In reversing the trial court and determining that the Kings County venue did not constitute a residence, the Second Department held that the plaintiff’s “occasional use of the bedroom in his sister and brother-in-law’s home does not support his contention that he has a second residence in Brooklyn”. The Second Department went on to explain: Although a person may have more than one residence for venue purposes, to consider a place as such, he must stay there for some time and have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. Residence requires more stability than a brief sojourn for business, social or recreational activities. The mere fact that plaintiff uses the Brooklyn home of his sister and brother-in-law as a stopover for convenience and to sleep there when in the area on business, does not establish a residence.

The other cases defendants cite also are unavailing. In the 1996, the plaintiff filed an action basing venue on her “residence” in Bronx County, a mere three months after moving to Bronx County from Westchester County. However, one week after the plaintiff moved to the Bronx, she registered her car in Westchester County, and “in her affidavit, the plaintiff acknowledged that she and her family were now residing in Putnam County”. After examining plaintiffs affidavit, the Second Department determined that “the move was not made with `the bona fide intent to retain the place in Bronx County as a residence for some length of time and with some degree of permanency'”. In the 1989 case decision, the First Department held that the trial court “did not abuse its discretion in granting the injury motion for a change of venue given its finding that plaintiffs’ occupancy of a relative’s home in the Bronx while their Westchester home was being renovated indicated a lack of intent to remain in the Bronx.” In the 2009, the evidence “revealed that on or about December 31, 2005, which was just over one year after the subject accident, the plaintiff moved to her son’s apartment in Brooklyn from her house in Staten Island after a `diabetic episode,’ that in March or April 2006, she entered into a contract to purchase a house in New Jersey, that on August 8, 2006, three days after commencing this action, she `took over’ her new house in New Jersey, and moved into it in November 2006.” The Second Department determined that the plaintiff was temporarily staying in a Brooklyn apartment without “the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency” when she commenced her action. Therefore, the motion to change venue from Kings County to Richmond County, where the defendants resided, should have been granted, the Court held.

Here, unlike the plaintiffs in the cases above, plaintiff had not recently moved to New York County when she filed the instant action. Instead, she had lived at the premises for two years prior. Therefore, none of these cases is on point. As it is clear from the evidence in the record that plaintiff was a resident of New York County at the time she commenced the instant action, and that her residence in New York County was not contrived to obtain an advantageous venue, defendants’ motion is denied.

Based on the foregoing, the court held that the motion of defendants for an order, pursuant to CPLR §511, to change the venue of this action brought by plaintiff is denied; and it is further ordered that counsel for plaintiff and counsel for defendants appear for a Preliminary Conference before the Justice 60 Center Street, Part 35, Rm. 438 on Tuesday, March 30, 2010 at 2:15 p.m.; and it is further ordered that defendants serve a copy of this order with notice of entry upon all parties within 20 days of entry.

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