Personal Jurisdiction. Forum Non Con. Venue. Forum Selection.

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

CPLR § 6301 Grounds for preliminary injunction and temporary restraining order

CPLR R. 327 Inconvenient forum

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Cantalupo Constr. Corp. v 2319 Richmond Terrace Corp., 2012 NY Slip Op 04310 (2nd Dept. 2012)

Given the circumstances of this case, and in the interests of justice and judicial economy, the Supreme Court should have granted that branch of the plaintiff's motion which was to remove the summary nonpayment proceeding pending in Civil Court, Richmond County, to the Supreme Court, Richmond County, and to consolidate that proceeding with the instant action for specific performance of an alleged agreement to purchase the subject property (see Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 72 AD3d 783; Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010-1011; Morrell & Co. Wine Emporium v Richalan Realty Corp., 93 AD2d 736, 737).

Gliklad v Cherney, 2012 NY Slip Op 05333 (1st Dept. 2012)

The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v Giorando (51 NY2d 904 [1980]) is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211(a)(7).

Defendant failed to meet his burden of establishing that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). Further, the subject promissory note contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion (see Sebastian Holdings, Inc. v Deutsche Bank AG., 78 AD3d 446, 447 [2010]).

The court properly granted plaintiff's motion for a preliminary injunction barring defendant from prosecuting the action he had commenced in Israel over the same promissory note at issue in the instant action. A party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable harm if the injunction were not granted, and a balance of the equities in the movant's favor (see W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Casita, L.P. v MapleWood Equity Partners [Offshore] Ltd., 43 AD3d 260 [2007]). Here, even if defendant may have a meritorious defense, plaintiff made a prima facie showing that his claim under the promissory note has merit (see Matter of Witham v Finance Invs., Inc., 52 AD3d 403 [2008]; Bingham v Struve, 184 AD2d 85 [1992]). Plaintiff also established a risk that he would suffer irreparable harm if he were to travel to Israel to litigate the other action, since this act might jeopardize his Canadian asylum status. In addition, the balance of the equities favors plaintiff, since the expenditures of time and resources by the parties and the court would be potentially wasted if the Israeli action, which defendant commenced one-and-a-half years after the commencement of the instant action, were to result in a decision precluding any decision the court might have reached in this case (see Jay Franco & Sons Inc. v G Studios, LLC, 34 AD3d 297 [2006]).

Further, defendant appeared to be forum shopping by attempting to obtain a favorable decision from the Israeli court, which would interfere with the New York court's ability to resolve the issues before it (see IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 59 AD3d 366 [2009]).

Finally, the court did not err in denying defendant's motion to renew. Contrary to defendant's contention that the court should have ordered plaintiff to post an undertaking to cover defendant's damages in the event the injunction were found to have been erroneously issued, the injunction would actually save both parties time and money by relieving them from the burden of litigating a second action (see Ithilien Realty Corp. v 180 Ludlow Dev. LLC, 80 AD3d 455 [2011]; Visual Equities Inc. v Sotheby's, Inc., 199 AD2d 59 [1993]).

Pratik Apparels, Ltd. v Shintex Apparel Group, Inc., 2012 NY Slip Op 04985 (2nd Dept. 2012)

"A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court. Absent a strong showing that it should be set aside, a forum selection agreement will control" (Hluch v Ski Windham Operating Corp., 85 AD3d 861, 862 [internal quotation marks and citations omitted]; see Bernstein v Wysoki, 77 AD3d 241, 248-249; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements" (Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534). Here, the forum selection clause contained in the subject bill of lading submitted by the defendant Classic Logistics, Inc. (hereinafter Classic), conclusively established that the plaintiff's action against Classic must be brought in federal court (see CPLR 3211[a][1]; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc., 57 AD3d 529, 530). The plaintiff failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the clause is invalid because of fraud or overreaching (see Bernstein v Wysoki, 77 AD3d at 249-250; Best Cheese Corp. v All-Ways Forwarding Int'l. Inc., 24 AD3d 580, 581; Koko Contr. v Continental Envtl. Asbestos Removal Corp., 272 AD2d 585, 586).

Kassotis v Kassotis, 2012 NY Slip Op 05148 (2nd Dept. 2012)

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's cross motion to the extent it did, and in denying the defendant's motion without prejudice to renewal in the Family Court, Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d 696, 697). The parties have litigated issues relating to child support in the Family Court, Westchester County, since 2006. The so-ordered stipulation, which the defendant seeks to modify, was entered in the Family Court, Westchester County. Further, the petitions filed by the defendant in the Family Court, Westchester County, are apparently still pending, as the defendant filed objections to the Support Magistrate's order denying the petitions. The Family Court, Westchester County, is familiar with the issues in the matter, while the Supreme Court, Queens County, has not been involved with the parties since the judgment of divorce was entered in February 1999. In addition, the defendant and the parties' children reside in Westchester County, and it appears that most of the material witnesses are in Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d at 697).

Pruitt v Patsalos, 2012 NY Slip Op 04986 (2nd Dept. 2012)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 510(2) to change the venue of the action from Orange County to Dutchess County is granted, and the Clerk of the Supreme Court, Orange County, is directed to deliver to the Clerk of the Supreme Court, Dutchess County, all papers filed in the action and certified copies of all minutes and entries (see CPLR 511[d]).

To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed (see Matter of Michiel, 48 AD3d 687; Jablonski v Trost, 245 AD2d 338, 339; Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666). Under the circumstances of this case, including the evidence demonstrating that the defendant is a retired Orange County Supreme Court Justice, who presided in that court for more than two decades, that his relative is a retired Orange County Court Judge, and that the defendant's daughter is a Support Magistrate in the Orange County Family Court, the protection of the court from even a possible appearance of impropriety requires a change of the venue of the action from Orange County to Dutchess County (see Saxe v OB/GYN Assoc., 86 NY2d 820, 822; Kavelman v Taylor, 245 AD2d 9; Milazzo v Long Is. Light. Co., 106 AD2d 495).

 

Venue

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Simon v Usher, 2012 NY Slip Op 01544 (1st Dept., 2012)

The motion to change venue was properly granted upon the grounds that, except for defendants Usher and Usher, M.D., P.C., all of the defendants and plaintiffs reside in Westchester County, and that while Usher, M.D., P.C., maintains a satellite office in Bronx County that it rents one day per month, Usher's primary office is located in Westchester County, the office where plaintiff was treated. Thus, movants met their initial burden of establishing that the Bronx County venue chosen by plaintiffs is improper (CPLR 503[a]; 510[1]; Hernandez v Seminatore, 48 AD3d 260 [2008]), and since [*2]plaintiffs forfeited their right to select the venue by choosing an improper venue in the first instance, venue is properly placed in Westchester County, where most of the parties reside (Weiss v Wal-Mart Stores E., L.P., 83 AD3d 461 [2011]).

Lapidus v 1050 Tenants Corp., 2012 NY Slip Op 02842 (2nd Dept., 2012)

A party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses and the ends of justice will be promoted by the change (see CPLR 510[3]; McManmon v York Hill Hous., Inc., 73 AD3d 1137, 1138; Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899, 899; Heinemann v Grunfeld, 224 AD2d 204). In doing so, the moving party must set forth (1) the names, addresses, and occupations of prospective witnesses, (2) the facts to which the prospective witnesses will testify at trial, so that the court may judge whether the proposed evidence of the prospective witnesses is necessary and material, (3) a statement that the prospective witnesses are willing to testify, and (4) a statement that the prospective witnesses would be greatly inconvenienced if the venue of the action was not changed (see Lafferty v Eklecco, LLC, 34 AD3d 754, 755; O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172).

Here, the defendant failed to establish that the real estate agent who cobrokered the sale of the plaintiffs' apartment in its cooperative building would be greatly inconvenienced if venue was not changed to New York County (see McManmon v York Hill Hous., Inc., 73 AD3d at 1138; Walsh v Mystic Tank Lines Corp., 51 AD3d 908; Ferndandes v Lawrence, 290 AD2d 412; Blumberg v Salem Truck Leasing, 276 AD2d 577; Maynard v Oakes, 144 AD2d 229, 230), and failed to satisfy all of the required criteria for a change of venue with respect to an attorney who served the defendant [*2]with a restraining notice in a related action. The remaining prospective witnesses identified by the defendant are its employees or agents, whose convenience is not a factor in considering a motion for a change of venue pursuant to CPLR 510(3) (see McManmon v York Hill Hous., Inc., 73 AD3d at 1138; Curry v Tysens Park Apts., 289 AD2d 191; Cilmi v Greenberg, Trager, Toplitz & Herbst, 273 AD2d 266, 267; D'Argenio v Monroe Radiological Assoc., 124 AD2d 541, 542). Accordingly, the defendant's motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to New York County based upon the convenience of material witnesses should have been denied.

Properly mistaken venue

CPLR § 510 Grounds for change of place of trial

 CPLR R. 511 Change of place of trial

Astillero v Abramov, 2012 NY Slip Op 00736 (1st Dept., 2012)

Plaintiff initially chose an improper venue in New York County. However, plaintiff selected this venue based on Department of Motor Vehicle records, which indicated that defendant Asia Abramov resided in New York County. Defendant Abramov had recently moved to Queens County, but failed to notify the Department of Motor Vehicle as required by VTL § 505(5). Under these circumstances, plaintiff did not forfeit her right to choose a venue by her initial choice of a venue that turned out to be improper (see Vasquez v Sonin, 259 AD2d 340, 341 [1999]).

 

Venue and Jurisdiction

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Non Con

CPLR R. 327 Inconvenient forum

CRT Invs., Ltd. v BDO Seidman, LLP, 2011 NY Slip Op 04816 (App. DIv., 1st 2011)

This litigation arises out of plaintiffs' investment in the Ascot Fund, Limited, a Cayman Islands hedge fund audited by BDO Tortuga, which was a "feeder fund" for Ascot Partners, L.P., a New York hedge fund audited by BDO Seidman. Plaintiffs asserted causes of action for fraud, aiding and abetting fraud, negligence, and gross negligence against these outside auditors for failing to disclose that the fund was ultimately managed by Bernard Madoff.

Plaintiffs failed to meet their burden of demonstrating the existence of personal jurisdiction over BDO Tortuga under New York's long arm statute (Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 95 [2010]). Plaintiffs failed to rebut defendant's affidavit (see Roldan v Dexter Folder Co., 178 AD2d 589, 590 [1991]), which established that BDO Tortuga has no presence in New York, that it performed the audit of the Ascot Fund in the Cayman Islands, pursuant to engagement letters executed in, and sent from, the Cayman Islands, and that there were only limited emails with anyone in New York "affiliated in any way with Ascot Fund." Although plaintiffs argue that BDO Tortuga relied upon the audit work that BDO Seidman had performed with respect to the existence and valuation of Ascot Partners and Ascot Fund's investments, there is no basis to conclude that BDO Tortuga should have reasonably expected to defend its actions in New York (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 466 [1988]). All of the relevant parties to the cause of action (plaintiff, defendant, and audit client), and all of the work that BDO Tortuga performed were in the Cayman Islands. Nor does sending a few emails and engagement letters into New York alter this result (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434 [2006], lv denied 9 NY3d 803 [2007]).

Plaintiffs' alternative argument, that BDO Tortuga is subject to personal jurisdiction under CPLR 302(a)(3), is also unavailing. In the context of a commercial tort, where the damage is solely economic, the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred (see O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 201-02 [2003]; Mid-Atlantic Residential Invs. Ltd. Partnership v McGuire, 166 AD2d 205, 206-07 [1990]). Plaintiff's claim that it was sold the investment in New York is irrelevant, because the injury did not arise out of its purchase of the investment here, but, rather, out of BDO Tortuga's alleged failure to appropriately perform its audit services. Defendants' affidavit also established that BDO Tortuga did not derive "substantial revenue" from interstate or international commerce (see LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]).

Berk v Linnehan, 2011 NY Slip Op 04820 (App. Div., 1st 2011)

The court properly denied defendants' motion for a change of venue to Suffolk County. Defendants failed to make the requisite showing that their allegedly inconvenienced non-party witnesses were actually contacted and were willing to testify (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]; Gluck v Pond House Farm, Inc., 271 AD2d 334 [2000]; CPLR 510[3]). Defendants also failed to set forth the substance and materiality of the testimony of at least two of the three witnesses.

Koskar v Ford Motor Co., 2011 NY Slip Op 04636 (App. Div., 2nd 2011)

The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that "in the interest of substantial justice the action should be heard in another forum" (CPLR 327[a]). The defendant bears the burden on a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479, cert denied 469 US 1108). "On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system" (Tiger Sourcing Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002, 1003; see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966). No one factor is dispositive (see Turay v Beam Bros. Trucking, Inc., 61 AD3d at 966; Brinson v Chrysler Fin., 43 AD3d 846, 848). The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Smolik v Turner Constr. Co., 48 AD3d 452, 453-454; Brinson v Chrysler Fin., 43 AD3d at 848). 

Here, the defendant Sail Trans Corp. failed to meet its burden of establishing that New York is an inconvenient forum for this consolidated action. Thus, the Supreme Court's determination denying that branch of its motion which was to dismiss the complaint insofar as asserted against it on the ground of forum non conveniens was not an improvident exercise of discretion (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Salzstein v Salzstein, 70 AD3d 806; Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028).

That branch of the appellant's motion which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(4) was not addressed by the Supreme Court and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543).

U.S. Bank, Natl. Assn. v Arias, 2011 NY Slip Op 05487 (App. DIv., 2nd 2011)

By order to show cause dated January 27, 2010, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The Supreme Court denied the defendant's motion in its entirety, without conducting a hearing. We reverse. 

"A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370).

Here, the Supreme Court erred in determining the defendant's motion without first conducting a hearing. The process server's affidavits constituted prima facie evidence of proper service (see Scarano v Scarano, 63 AD3d at 716). However, to rebut that showing, the defendant submitted a sworn denial of service containing specific facts to rebut the presumption of proper service. Furthermore, in replying to contentions raised by the plaintiff in its opposition papers, the defendant submitted documentary evidence supporting his claim that he did not reside at the subject premises or at the Long Island City address in 2008. The defendant's submission was sufficient to rebut the prima facie showing of proper service, and to necessitate a hearing. Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308(2), and for a new determination thereafter of his motion to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

Sufficient Start

Marist Coll. v Brady, 2011 NY Slip Op 04638 (App. Div., 2nd 2011)

Under the circumstances, the Supreme Court properly exercised its discretion in deciding, on the merits, that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (see Fugazy v Fugazy, 44 AD3d 613, 614). As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden of proof on this issue (see Alden Personnel, Inc. v David, 38 AD3d 697, 698; Brandt v Toraby, 273 AD2d 429, 430). To successfully oppose a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, the plaintiff did not need to make a prima facie showing of jurisdiction, but instead only needed to set forth "a sufficient start, and [show its] position not to be frivolous" (Peterson v Spartan Indus., 33 NY2d 463, 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624; American BankNote Corp. v Daniele, 45 AD3d 338, 340; Cordero v City of New York, 236 AD2d 577, 578).

Since the plaintiff established that facts " may exist'" to exercise personal jurisdiction over the appellants and has made a "sufficient start" to warrant further discovery on that issue, the Supreme Court properly denied that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (Peterson v Spartan Indus., 33 NY2d at 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624; Castillo v Star Leasing Co., 69 AD3d 551, 552; cf. Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794; Roldan v Dexter Folder Co., 178 AD2d 589, 589). However, since the plaintiff failed to demonstrate, prima facie, that the appellants were subject to the Supreme Court's long-arm jurisdiction pursuant to CPLR 302(a)(3)(ii) (cf. Alden Personnel, Inc. v David, 38 AD3d at 698), we modify the order appealed from to allow the appellants to seek dismissal of the complaint pursuant to CPLR 3211(a)(8) upon the completion of discovery (see Ying Jun Chen v Lei Shi, 19 AD3d 407, 407-408; Lettieri v Cushing, 80 AD3d 574, 575-576).

HBK Master Fund L.P. v Troika Dialog USA, Inc., 2011 NY Slip Op 05569 (App. Div., 1st 2011)

Plaintiffs made a "sufficient start" in demonstrating that the Russian defendants were doing business in New York through their direct or indirect subsidiaries to warrant further discovery on the issue of personal jurisdiction, including whether the parents exercised control over the subsidiaries and are therefore subject to New York's long-arm jurisdiction (see Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]; Edelman v Taittinger, S.A., 298 AD2d 301, 302 [2002]).

OrthoTec, LLC v Healthpoint Capital, LLC, 2011 NY Slip Op 04533 (App. Div., 1st 2011)

We do not find that "in the interest of substantial justice the action should be heard in" France (see CPLR 327[a]). "Generally, unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed" (Anagnostou v Stifel, 204 AD2d 61, 61 [1994] [internal quotation marks and citations omitted]). This is true even though plaintiff is not a New York resident (see Travelers Cas. & Sur. Co. v Honeywell Intl. Inc., 48 AD3d 225, 226 [2008]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). The fact that defendants are New York residents weighs against forum non conveniens dismissal (see e.g. Anagnostou, 204 AD2d at 62). Even if some documents will have to be translated from French into English, that does not require dismissal (see e.g. American BankNote Corp. v Daniele, 45 AD3d 338, 340 [2007]).

Non-Con and venue

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Otero v Davis, 2011 NY Slip Op 03191 (App. Div., 1st 2011)

Defendant failed to meet her burden to establish that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). There is nothing in the record to suggest that the court did not properly consider the relevant factors (see Pahlavi at 479).

Mann v Janyear Trading Corp., 2011 NY Slip Op 03192 (App. Div., 1st 2011)

The untimeliness of defendants' demand for a change of venue and the subsequent motion is excusable because the summons, complaint, and bill of particulars misleadingly indicated that plaintiff resided in Bronx County (see Philogene v Fuller Auto Leasing, 167 AD2d 178 [1990]). Furthermore, the record shows that defendants promptly moved only days after ascertaining that the statements made by plaintiff were misleading (see id.).

Regarding the merits, the motion, which was based on plaintiff's designation of an improper county (CPLR 510[1]), should have been granted and venue changed to Kings County (defendants' residence). Plaintiff's assertion that she resided in Bronx County is untenable in light of her deposition testimony. When asked if she ever resided at her parents' residence in the Bronx "at any time during 2006," which was when the accident occurred and the action was commenced, plaintiff replied "no" and that she had lived in New York County during the relevant time (see Santulli v Santulli, 228 AD2d 247, 248 [1996]).

Mohsin v Port Auth. of N.Y. & N.J., 2011 NY Slip Op 03119 (App. Div., 1st 2011)

Defendants' moving papers were deficient inasmuch as they failed to provide the names, addresses and occupation of prospective non-party witnesses, the proposed testimony, the witnesses' willingness to testify, and that the witnesses will be inconvenienced by the present venue (see Jacobs v Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d 299 [2004]); the convenience of party witnesses is not a factor (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]). The affidavits submitted for the first time in defendants' reply papers should not have been considered by the court, as they improperly raised new facts not directly responsive to plaintiff's opposition, which merely highlighted the deficiency of defendants' initial papers (see Root v Brotmann, 41 AD3d 247 [2007]; Job v Subaru Leasing Corp., 30 AD3d 159 [2006]).

Weiss v Wal-Mart Stores E., L.P., 2011 NY Slip Op 02814 (App. Div., 1st 2011)

Defendant met its initial burden of establishing that the venue chosen by plaintiff was improper (see Hernandez v Seminatore, 48 AD3d 260 [2008]; CPLR 510[a]). Defendant submitted proof indicating that plaintiff's claimed residence in New York County was an office building, not an apartment building. Defendant also submitted motor vehicle records showing that plaintiff resided in Orange County at all relevant times (see Collins v Glenwood Mgt. Cor., 25 AD3d 447, 448 [2006]. Plaintiff's conclusory affidavit attesting to her New York County residence was insufficient to rebut defendant's proof (see Furlow v Braeubrun, 259 AD2d 417 [1999]). Furthermore, since plaintiff forfeited the right to select the venue by choosing an improper venue in the first instance (see Roman v Brereton, 182 AD2d 556 [1992]), venue is properly placed in Suffolk County, defendant's designated residence for venue purposes.

On Venue

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Accardi v Kaufmann, 2011 NY Slip Op 01775 (App. Div., 2nd 2011)

A demand to change venue based on the designation of an improper county (see CPLR 510[1]) "shall be served with the answer or before the answer is served" (CPLR 511[a]; see Thomas v Guttikonda, 68 AD3d 853, 854). Since the defendant Trevor Kaufmann did not serve his demand for a change of venue until after he served his answer, he was not entitled to change venue as of right (see Thomas v Guttikonda, 68 AD3d at 854; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 816). Thus, his motion became one addressed to the motion court's discretion (see Thomas v Guttikonda, 68 AD3d at 854; Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d at 816).

The Supreme Court providently exercised its discretion in granting Kaufmann's motion to change the venue from Nassau County to Suffolk County. None of the parties resided in Nassau County at the time the action was commenced (see CPLR 503[a]; Peretzman v Elias, 221 AD2d 192). The plaintiff omitted from the summons the basis for placing the venue in Nassau County, indicating only that he was a resident of New York State (see CPLR 305[a]; Peretzman v Elias, 221 AD2d at 192; Philogene v Fuller Auto Leasing, 167 AD2d 178). Further, Kaufmann moved promptly to change venue after ascertaining the plaintiff's true residence (see O'Connor v Roman Catholic Diocese of Rockville Ctr., 231 AD2d 700; Philogene v Fuller Auto Leasing, 167 AD2d at 179).

CPLR § 510 venue properly changed. And other stuff ( R. 511; § 503)

CPLR § 510 Grounds for change of place of trial

Lopez-Viola v Duell, 2010 NY Slip Op 08539 (App. Div., 2nd 2010) 

The Supreme Court improvidently exercised its discretion in denying the defendants' motion to change the venue of the action from Kings County to Montgomery County, where the underlying motor vehicle accident occurred. The papers submitted by the appellants contained (1) the names, addresses, and occupations of two prospective witnesses, both of whom were officers with the Montgomery County Sheriff's Department, (2) the facts to which the witnesses would testify at trial, (3) statements demonstrating that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908; Lafferty v Eklecco, LLC, 34 AD3d 754; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d 313). Moreover, the convenience of local government officials is of paramount importance, because they should not be kept from their duties unnecessarily (see Lafferty v Eklecco, LLC, 34 AD3d at 754; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d at 313). In contrast, the plaintiff's residence was the only apparent connection to Kings County and, in opposition to the motion, and the plaintiff failed to offer proof that there were any independent witnesses who would be inconvenienced if the action were transferred to Montgomery County.

Myoung Hee Yi v Meitetsu Express, 2010 NY Slip Op 08545 (App. Div., 2nd 2010)

For venue purposes, generally the sole residence of a foreign corporation is the county within the State in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York, or an amendment thereof (seeCPLR 503[c]; Business Corporation Law § 102[a][10]; Ashjian v Orion Power Holdings, Inc., 9 AD3d 440; Bailon v Avis Rent A Car,270 AD2d 439, 440; Collins v Trigen Energy Corp., 210 AD2d 283). Thus, here, where the general rule applies, New York County was the residence of the defendant Meitetsu Express, a California corporation authorized to do business in New York State, as that was the county designated in its application for authority. Accordingly, since none of the parties maintained a residence in Queens County, the plaintiff's designation of Queens County as the place of trial was improper, and the Supreme Court erred in denying the defendants' motion for a change of venue from Queens County to Nassau County, where the plaintiff and the individual defendant resided and the accident occurred. 

Moracho v Open Door Family Med. Ctr., Inc., 2010 NY Slip Op 0938 (App. Div., 1st 2010)

While there is no statutory time limit for a motion to change venue upon dismissal of a party whose residence provided the basis for venue, this Court has nonetheless required that such motions be made promptly (Clase v Sidoti, 20 AD3d 330 [2005]; Caplin v Ranhofer, 167 AD2d 155, 157-58 [1990]), that is, within a reasonable time after the movant obtains knowledge of the facts supporting the request (Herrera v R. Conley Inc., 52 AD3d 218 [2008]; Diaz v Clock Tower Assoc., 271 AD2d 290 [2000]). It also bears noting that a party need not wait for notice of entry of the order dismissing the improper party before it moves for a change of venue (see Emerick v Metropolitan Transp. Auth., 272 AD2d 150 [2000] [venue motion made simultaneous with dismissal motion]).

Here, defendants may have been aware as early as February 28, 2008, fifteen months before making their motion, that Primary Care Development Corporation, the sole defendant on whose residence venue in New York County was based, sought dismissal of the action against it ^[FN1]. Thereafter, Primary Care's September 2008 dismissal motion, made more than eight moths prior to the other defendants' venue applications, was unopposed. By order entered March 4, 2009, the court dismissed Primary Care from the case. In its order, the court explicitly stated that [*2]"none of the remaining parties has any connection to New York County and that [the] case is therefor amenable to a motion to change venue".

Notwithstanding this pronouncement, the remaining defendants waited an additional three months, during which time they appeared in New York County and set a trial date, without giving any indication of a venue problem. Two months after the trial date was set, the motion was made to change venue to Westchester. Given these circumstances, the grant of the motion was an improvident exercise of discretion and an implicit endorsement of careless motion practice, in disregard of the important principles of fair notice and judicial economy (see e.g. Herrera v R. Conley Inc., 52 AD3d 218 [2008]; Schwarz v Erpf Estate, 232 AD2d 316 [1996]; see also Litt v Balmer, 146 AD2d 559 [1989] [that trial date had been set was factor supporting finding that granting untimely venue change was abuse of discretion]).

There is a dissent.

 

CPLR § 511(b) Sufficiency of affidavit can’t be weighed, but contents may be considered.

CPLR § 503 Venue based on residence

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial 

HVT, Inc. v Safeco Ins. Co. of Am., 2010 NY Slip Op 06571 (App. Div., 2nd 2010)

On this appeal, we must determine whether an affidavit served by a plaintiff in accordance with CPLR 511(b) may be scrutinized to ensure that it does, in fact, "show[ ] either that the county specified by the defendant is not proper or that the county designated by him is proper," or if the mere service of such an affidavit, irrespective of its content, satisfies the plaintiff's burden. We hold that, while the sufficiency of the factual averments set forth in such affidavits may not be weighed, the contents of the affidavits may nonetheless be considered to confirm that the averments therein do indeed "show[ ] either that the county specified by the defendant is not proper or that the county designated by [the plaintiff] is proper" as required by the statute (CPLR 511[b]).

It's a long decision, but it's worth reading.  I'll add more later.

 

CPLR § 510; CPLR R. 511; Forum Non Con; Venue Selection Clause

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

CPLR R. 327 Inconvenient forum

Feather v Goglia, 2009 NY Slip Op 06661 (App. Div., 2nd, 2009)

The plaintiff placed the venue of this action in Queens County based
upon the defendant's purported residence at the time of the
commencement of the action (see CPLR 503[a]). The defendant
moved to transfer the venue of the action to Nassau County, alleging
that he did not reside in Queens County when the action was commenced.
In support of the motion, the defendant submitted, inter alia, several
mobile telephone bills and a motor vehicle lease bearing his name and a
Nassau County address, and several electric bills addressed to a person
named Catherine Goglia at the same Nassau County address. Thus, the
defendant raised an issue of fact as to whether he resided in Nassau
County when this action was commenced (see Johnson v Gioia, 38 AD3d 845; Rivera v Jensen,
307 AD2d 229, 230). Furthermore, the evidence submitted by the
plaintiff in opposition, that the defendant's driver's license listed a
Queens County address and that the vehicle registration listed a Nassau
County address, only raised further issues of fact regarding residency (see Gonzalez v Weiss, 38 AD3d 492).
Since this issue of fact could not properly have been resolved on the
papers alone, the Supreme Court should have held a hearing on the issue
of residency prior to determination of the motion (see Johnson v Gioia, 38 AD3d 845; Ramondi v Paramount Leasehold L.P., 37 AD3d 447).

The plaintiff's contention that the defendant is estopped from
contesting venue because the defendant failed to comply with Vehicle
and Traffic Law § 505(5) is without merit. The cases relied upon by the
plaintiff are distinguishable, inasmuch as all of those cases address
service of process (see e.g. Walker v Reyes, 59 AD3d 436, 437; Candela v Johnson, 48 AD3d 502, 503; [*2]Velasquez v Gallelli, 44 AD3d 934, 935). In contrast, the instant appeal involves a motion pursuant to CPLR 510 and 511 to transfer the venue of the action.

Goldberg v Goldberg, 2009 NY Slip Op 06800 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying the
appellant's motion pursuant to CPLR 510(3) to change the venue of this
action from Kings County to Sullivan County based on the convenience of
material witnesses (see Frankel v Stavsky, 40 AD3d 918, 919; O'Brien v Vassar Bros. Hosp.,
207 AD2d 169, 172). In support of his motion, the appellant failed to
sufficiently establish that the nonparty witnesses for whose
convenience the change of venue was sought were willing to testify on
his behalf and would be inconvenienced if venue were not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909; Miszko v Leeds & Morelli, 269 AD2d 372; Cumberbatch v Gatehouse Motel & Rest., 265 AD2d 370; Rich v O'Connor, 212 AD2d 767). Moreover, the appellant failed to specify the nature and materiality of their anticipated testimony (see Shindler v Warf, 24 AD3d 429, 430; Giaimo v Hastings, 19 AD3d 365, 366; Weisemann v Davison, 162 AD2d 448).

Brown v Dawson, 2009 NY Slip Op 06734 (App. Div., 2nd, 2009)

Plaintiff properly placed venue in New York County based upon St.
Vincent's Hospital and Medical Center's designation of New York County
as its corporate residence on its certificate of incorporation (see CPLR 503[c]; Krochta v On Time Delivery Serv., Inc., 62 AD3d 579, 580 [2009]; Velasquez v Delaware Riv. Val. Lease Corp., 18 AD3d 359, 360 [2005]).

Nor does the record support a discretionary change of venue
pursuant to CPLR 510(3), inasmuch as appellant failed to detail the
identity and availability of proposed witnesses, the nature and materiality of the anticipated testimony and the manner in which they would be inconvenienced by the designated venue (see Parker v Ferraro, 61 AD3d 470 [2009]). 

Trump v Deutsche Bank Trust Co. Ams., 2009 NY Slip Op 06831 (App. Div., 2nd, 2009)

A contractual forum selection clause is prima facie valid and
enforceable "unless it is shown by the challenging party to be
unreasonable, unjust, in contravention of public policy, invalid due to
fraud or overreaching, or it is shown that a trial in the selected
forum would be so gravely difficult that the challenging party would,
for all practical purposes, be deprived of its day in court" (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, lv denied NY3d, 2009 NY Slip Op 83212 [2009]; see Brook Group v JCH Syndicate 488, 87 NY2d 530, 534; Harry Casper, Inc., v Pines Assoc., L.P., 53 AD3d 764, 764-765; Best Cheese Corp. v All-Ways Forwarding Int'l., Inc., 24 AD3d 580, 581; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535, 536; Premium Risk Group v Legion Ins. Co.,
294 AD2d 345, 346). The plaintiffs failed to demonstrate that the
subject clause contained in the Mezzanine Loan Agreement was invalid
for any of these reasons. Nor is there any merit to their argument that
the subject clause contained in the Mezzanine Loan Agreement was either
permissive or insufficiently mandatory, or applied only to actions
commenced by the lender (see e.g. Fear & Fear, Inc. v N.I.I. Brokerage, L.L.C.,
50 AD3d 185). Further, and contrary to the plaintiffs' contention, the
Mezzanine Loan Agreement forum selection clause is neither subordinate
to, nor in conflict with, the forum selection clause in the
construction loan agreement. We also reject the claim that the [*3]complaint
in Action No. 1 does not seek relief from the Mezzanine defendants
sufficient to trigger the forum selection clause in the Mezzanine Loan
Agreement. Accordingly, the motion pursuant to CPLR 501 and 511 to
change the venue of Action No. 1 from Queens County to New York County
should have been granted, and the two actions should have been directed
to be jointly tried in New York County.

Kargbo-Turay v Beam Bros. Trucking, Inc., 2009 NY Slip Op 06806 (App. Div., 2nd, 2009)

In a closely related action arising out of the same incident, we
held that the motion for dismissal under the doctrine of forum non
conveniens pursuant to CPLR 327(a) should have been granted, with
certain conditions (see Turay v Beam Bros. Trucking Inc., 61
AD3d 964). In this case, there is nothing that supports a different
result, and we find that "in the interest of substantial justice the
action should be heard in another forum" (CPLR 327[a]).

To assure the availability of a forum for the action, our
reversal and granting of the motion to dismiss is conditioned upon the
appellant stipulating to waive jurisdictional and statute of
limitations defenses as indicated (see CPLR 327[a]; see Turay v Beam Bros. Trucking Inc., 61 AD3d at 964; Cheggour v R'Kiki, 293 AD2d 507).

The bold is mine.

CPLR § 503(a); CPLR § 510; CPLR R. 511(d)

CPLR § 510 Grounds for change of place of trial

The court, upon motion, may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in the proper county; or3. the convenience of material witnesses and the ends of justice will be promoted by the change.

CPLR R. 511 Change of place of trial

CPLR § 503 Venue based on residence

Morreale v 105 Page Homeowners Assn., Inc., 2009 NY Slip Op 05952 (App. Div., 2nd, 2009)

Upon renewal, the appellants submitted excerpts of the
plaintiff's deposition testimony, which was taken after the Supreme
Court's original order dated January 8, 2007, denying their motion
pursuant to CPLR 510(1) and 511 to change the venue of the action from
Kings County to Richmond County. The relevant testimony 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.
[*2]

A residence for venue purposes
is a place where one stays for some time with "the bona fide intent to
retain the place as a residence for some length of time and with some
degree of permanency" (Katz v Siroty, 62 AD2d 1011, 1012; see Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d 518, 519; Mandelbaum v Mandelbaum, 151 AD2d 727, 728).

Upon renewal, the appellants made a prima facie showing that the
plaintiff was temporarily staying at the Brooklyn apartment at the time
she commenced this action without "the bona fide intent to retain the
place as a residence for some length of time and with some degree of
permanency" (Katz v Siroty, 62 AD2d at 1012; see Neu v St. John's Episcopal Hosp., 27 AD3d 538; Jones-Ledbetter v Biltmore Auto Sales, 229 AD2d at 519; Sibrizzi v Mount Tom Day School, 155 AD2d 337). The plaintiff failed to rebut that showing (see Samuel v Green,
276 AD2d 687). Accordingly, upon renewal, the appellants' motion to
change venue from Kings County to Richmond County, the county where the
defendants resided, should have been granted (see CPLR 503[a]; Maggio v Wal-Mart Stores, 275 AD2d 350, 351).

The bold is mine.