Opinion
No. 307484/09.
2010-06-30
Kenneth DLUGASKI, Plaintiff, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, 1 World Trade Center LLC and Tishman Construction Corporation of New York, Defendants.
Segal McCambridge, Singer & Mahoney, Ltd., by Simon Lee, New York, Attorney for Defendant The Port Authority of New York and New Jersey, 1 World Trade Center LLC, Tishman Construction Corporation of New York. Sacks and Sacks LLP, by Devon Reiff, Esq., Attorney for Plaintiff Kenneth Dlugaski.
Segal McCambridge, Singer & Mahoney, Ltd., by Simon Lee, New York, Attorney for Defendant The Port Authority of New York and New Jersey, 1 World Trade Center LLC, Tishman Construction Corporation of New York. Sacks and Sacks LLP, by Devon Reiff, Esq., Attorney for Plaintiff Kenneth Dlugaski.
KENNETH L. THOMPSON, J., JR.
Defendants' THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, 1 WORLD TRADE CENTER LLC and TISHMAN CONSTRUCTION CORPORATION OF NEW YORK (“The Port Authority”) motion for an Order pursuant to CPLR § 510(3) changing the venue of this action from Bronx County to New York County is denied.
Plaintiff claims that he sustained injuries “at the premises under construction at the Freedom Towers located at the World Trade Center, Borough of Manhattan, City and State of New York,” ( Ver. Bill. Part. at ¶ 6), when “he was struck by a bundle of rebar that was improperly hoisted and improperly secured” ( id. at ¶ 5). Plaintiff was a Richmond County resident when this action was commenced, however, he placed venue in the Bronx based on the Port Authority's residence. ( NOC at ¶ 1; see also S & C.) The Port Authority is now seeking to change the venue of this action “upon the grounds that the ends of justice will be promoted by having the place of trial in New York County.” ( Not. Mot. at ¶ (a)). Plaintiff opposes the motion on the grounds that McKinney's Unconsolidated Laws of New York § 7106 entitles him to maintain venue here in Bronx County.
The Port Authority is adamant that its “motion is not based on the convenience of material witness,' but upon a lack of nexus with the Bronx.” ( Def. Reply at ¶ 20.) Therefore, it supposes, it is not required to “ma[k]e a showing of inconvenience of witnesses, including but not limited to the identity of witnesses, the materiality of anticipated testimony, and how they would be inconvenienced.” ( Id. at ¶ 19.) Rather, the Port Authority's stance that the “ends of justice would be promoted” by a change to New York County relies on two basic arguments. This cause of action should be tried in New York County where it arose since it is a transitory action. ( Def. Aff. Supp. at ¶ 15.) And Bronx County “bears absolutely no relationship” to the alleged accident since none of the parties resided there when the action was commenced. ( Id. at ¶ 16.) The Port Authority alludes to four specific facts in support of its arguments, that: 1) Plaintiff is a Richmond County resident; 2) the cause of action arose in New York County; 3) none of the Defendants maintain a principal place of business in the Bronx; and 3) none of Plaintiff's medical providers are located in the Bronx ( id. at ¶¶ 13 & 24).
The Court finds that both of Defendants' contentions are insufficient to justify a discretionary change of venue based on the facts as provided. First, the Port Authority may not rely on the “ends of justice” component of § 510(3), without addressing the “convenience of material witnesses.” Second, the Port Authority—for all intents and purposes—is a resident of Bronx County as per McKinney's Unconsolidated Laws of New York § 7106.
Applicable Venue Statutes
“Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff.” CPLR § 503(a). “Generally. The place of trial of an action by or against a public authority constituted under the laws of the state shall be in the county in which the authority has its principal office or where it has facilities involved in the action.” CPLR § 505. In actions regarding “consent to liability for tortious acts,” “venue in any suit, action or proceeding against the port authority shall be laid within a county or a judicial district, established by one of said states or by the United States. The port authority shall be deemed to be a resident of each such county or judicial district for the purpose of such suits, actions or proceedings.” McKinney's Uncons Laws of N.Y. § 7106. “The court, upon motion, may change the place of trial of an action where: ... the convenience of material witnesses and the ends of justice will be promoted by the change.” CPLR § 510(3).
Plaintiff is entitled to venue this action in Bronx County based on McKinney's Uncons Laws of N.Y. § 7106, which overrides CPLR § 505 in this instance. See Bollman v. Port Auth., 17 A.D.3d 182–83, 796 N.Y.S.2d 334 (holding that “[a] special statute which is in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies”). And since Defendants are seeking discretionary relief under CPLR § 510(3), the fifteen-day time limit enunciated in CPLR 511 is inapplicable. See Tesfaye v. Swett, 227 A.D.2d 150, 641 N.Y.S.2d 674.
The issue that arises is whether the “ends of justice” will be promoted by a move to New York County based on the facts posited by Defendants. Although this term lacks an “ordinary and unambiguous meaning,” Butcher's Union Local No. 498 v. SDC Invest., Inc., 788 F.2d 535, 538–39, and “cannot be finely particularized,” Sanders v. U.S., 373 U.S. 1, 17, 83 S.Ct. 1068, 10 L.Ed.2d 148, the word “justice” means “[t]he fair and proper administration of laws,” Black's Law Dictionary (7th ed 1999), at 869. Next, “judicial discretion,” which the Port Authority is asking the Court to exercise in consideration of its application, is “[t]he exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law.” Black's Law Dictionary (7th ed.1999), at 479. Conversely, “[d]iscretion, in this sense, is abused when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the court.” People v. S., 87 Misc.2d 951, 955, 386 N.Y.S.2d 536.
Finally, there is a constitutional obligation that courts determine the expressed will of the Legislature, and such legislative intent must be first sought in the language of the statute under consideration. Where the terms of the statute are plain and unambiguous, the statute must be construed in accordance with its expressed terms, and should be construed so as to effectuate the plain meaning of the words used. In construing a given statutory enactment, a court should not by construction extend such statute beyond its express terms or the reasonable implications of its language. Drelich v. Kenlyn Homes, Inc., 86 A.D.2d 648, 649, 446 N.Y.S.2d 408.
The Court realizes that the venue determination in this action requires a balancing of interests—Plaintiff's entitlement to have this action heard in Bronx County versus Defendants' right to have it moved to New York County—and that a just outcome relies on a fair and reasonable interpretation of applicable legal statutes, principles and precedents. The Court finds that based on its analysis of the above, the Port Authority has failed to show that it would be unfair or inconvenient to maintain the venue of this action in the Bronx. Furthermore, the Court finds that absent this showing, Plaintiff is entitled to maintain venue of this action in the Bronx.
convenience of material witnesses
As stated earlier, § 510(3) mandates that change of venue is warranted where “the convenience of material witnesses and the ends of justice will be promoted by the change.” (emphasis added). Given that this Court's discretion must be guided by the plain meaning of the statute at issue, it cannot ignore the conjunctive contained therein. Simply stated, the Court cannot examine what would promote the ends of justice without also considering the convenience of material witnesses in its equation. Indeed, although “in general, the venue of a transitory action lies in the county where the cause of action arose, that rule is predicated upon the concept of convenience for witnesses who are to be present at trial.” Iassinski v. Vassiliev, 220 A.D.2d 372–73, 633 N.Y.S.2d 281;see also Leopold v. Goldstein, 283 A.D.2d 319, 320, 726 N.Y.S.2d 15;Chimarios v. Duhl, 152 A.D.2d 508, 509, 543 N.Y.S.2d 681;Boriskin v. Long Island Jewish–Hillside Medical Ctr., South Shore Div., 85 A.D.2d 523, 444 N.Y.S.2d 618.
The Court finds that the underlying basis of the statute is that a fair trial is contingent on each party being able to present witnesses in support of its case. And by placing venue in a county that would inconvenience such witnesses would not promote the “fair and proper administration of laws.” For example, the court in Henry v. Cent. Hudson Gas & Elec. Corp., 57 A.D.3d 452, 872 N.Y.S.2d 4, changed venue because the police officers and EMT workers who responded to the scene and prepared reports detailing their response averred that they were willing to testify but would be inconvenienced “by having to take a day off of work from their public service jobs to travel to Bronx County to testify.” The court in Austin v. DaimlerChrysler Corp., 294 A.D.2d 182, 741 N.Y.S.2d 685, changed venue “to Suffolk County, where the liability witnesses either work or live, many of whom, namely, police, fire and ambulance personnel who responded to the accident, have submitted affidavits stating that they would be inconvenienced by having to testify in New York County.” The court in Groos v. New York Tel., 216 A.D.2d 103, 628 N.Y.S.2d 104, changed venue “to Westchester County, where the cause of action arose, the majority of material witnesses work or reside, the police records are located, and plaintiff received most of his medical treatment.”
This approach is consistent with how the First Department has handled the instant issue of retaining venue of actions against the Port Authority in the Bronx. Rodriguez v. Port Auth. of N.Y. & N.J., 293 A.D.2d 325, 326, 740 N.Y.S.2d 323 (finding that “[w]ithout this showing of inconvenience, the IAS court improvidently exercised its discretion in granting a change of venue that had been properly laid by statute”); Bollman v. Port Auth., 17 A.D.3d 182, 183, 796 N.Y.S.2d 334 (finding that “[d]efendants failed to identify proposed witnesses who were located in Queens County, to detail the nature and materiality of any anticipated testimony, or to describe how the parties and the witnesses would be inconvenienced by placing venue in the Bronx”).
Consequently, the Port Authority's failure to address the “convenience of material witnesses” prong of CPLR § 510(3) alone warrants the denial of its application. See Chimarios, 152 A.D.2d at 509, 543 N.Y.S.2d 681 (holding that “the movant has the burden of showing that the convenience of material witnesses would be better served by such a change”); see also Leopold, 283 A.D.2d at 320, 726 N.Y.S.2d 15 (holding that “the proponent of a change in venue in a transitory action must comply with CPLR § 510(3) and is required to provide: (1) the identity of the proposed witnesses, (2) the manner in which they will be inconvenienced by a trial in the county in which the action was commenced, (3) that the witnesses have been contacted and are available and willing to testify for the movant, (4) the nature of the anticipated testimony, and (5) the manner in which the anticipated testimony is material to the issues raised in the case”) (citations omitted).
As above-stated, the Port Authority labors under the misunderstanding that it may seek a change in venue without showing inconvenience, thus, it made no attempt to do so. The fact that Plaintiff is a Richmond County resident, the cause of action arose in New York County, none of the Defendants maintain a principal place of business in the Bronx, and none of Plaintiff's medical providers are located in the Bronx, does not speak to any witness—material or otherwise, regarding liability or damages—being inconvenienced by having to testify at a Bronx trial. Thus, the Court finds that the “ends of justice” would no more be promoted by moving the trial to New York County than would be by maintaining the status quo.
§ 7106
Despite the Honorable Judge Nelson S. Roman's finding that McKinney's Uncons. Laws of N.Y. § 7106 allows the Port Authority to be sued in the Bronx without conferring Bronx residency status on that entity, see Tarpey v. Port Auth. of N.Y. & N.J., 7 Misc.3d 1006A, 2005 WL 782816, *3, other learned Bronx Jurists have found otherwise, see, e.g., Caamano v. Port Auth., 188 Misc.2d 321, *6 (finding that “the Port Authority has a place of residence in Bronx County pursuant to McKinney's Unconsolidated Laws of N.Y. § 7106”); Espada v. Port Auth. of N.Y. & N.J., 22 Misc.3d 1136A, *3, (finding that “[p]ursuant to Unconsolidated Laws § 7106, the Port Authority is de jure deemed to be a resident of each county in New York City and therefore qualifies as a Bronx County resident”) (emphasis in opinion); O'Connor v. Port Auth. of N.Y. & N.J., 12 Misc.3d 1181A, *3 (citing to Caamano ).
Regardless of the legal fiction
In siding with those Courts that have deemed the Port Authority to be a Bronx resident pursuant to McKinney's Uncons. Laws of N.Y. § 7106, this Court is not intimating that either the Honorable Judge Roman's or the Honorable Judge Salman's conclusions were erroneous, see McDaniel v. Port Auth., 202 A.D.2d 222, 608 N.Y.S.2d 223. Rather, this Court simply reached a different result based upon the circumstances of the situation presented and its own evaluation of “well-regulated equity principles and precedents.” Dexter v. Beard, 1889 N.Y. Misc. LEXIS 913, ––––18.
created by § 7106, that statute “deems” that the Port Authority is—in actuality—a Bronx resident for the purposes of suits such as this. So, contrary to the Port Authority's understanding of the statute, it is, in fact, a Bronx resident. Thus, it cannot reasonably sustain the attitude that Bronx County “bears absolutely no relationship” to the alleged accident.
See Black's Law Dictionary (7th ed 1999), at 425 (stating that “ ‘[d]eem’ is a useful word when it is necessary to establish a legal fiction either positively by deeming' something to be something it is not or negatively by deeming' something not to be something which it is”).
The foregoing shall constitute the decision and order of this Court.