Opinion
17195 Index No. 155531/21 Case No. 2022–03246
01-26-2023
Dileisy Marte MARTE, Plaintiff–Appellant, v. David Harris LAMPERT et al., Defendants–Respondents.
Bornstein & Emanuel, P.C., Garden City (Shane Bornstein of counsel), for appellant. Law Office of Brian Rayhill, New York (Jennifer L. Coviello of counsel), for respondents.
Bornstein & Emanuel, P.C., Garden City (Shane Bornstein of counsel), for appellant.
Law Office of Brian Rayhill, New York (Jennifer L. Coviello of counsel), for respondents.
Friedman, J.P., Moulton, Kennedy, Pitt–Burke, JJ.,
Order, Supreme Court, New York County (James G. Clynes, J.), entered March 31, 2022, which granted defendants’ motion to change venue to Nassau County, unanimously reversed, on the law, without costs, and the motion denied.
Supreme Court improvidently exercised its discretion in granting defendants’ motion to change venue. Plaintiff properly placed venue in New York County based upon the corporate defendant's initial certificate of incorporation designating New York County as the location of its principal office although the company has no office there (see CPLR 503[c] ; Sultana v. St. Elizabeth Med. Ctr., 187 A.D.3d 590, 591, 130 N.Y.S.3d 679 [1st Dept. 2020] ; Janis v. Janson Supermarkets LLC, 161 A.D.3d 480, 73 N.Y.S.3d 419 [1st Dept. 2018] ).
While defendants annexed to their moving papers the police report for the subject motor vehicle accident indicating that defendants’ vehicle was registered to a Nassau County address on the day of the accident and an affidavit from the corporate defendant's Vice President averring that its office was in Nassau County when the action was commenced, the corporate residence designated in the initial certificate of incorporation controls for venue purposes (see Villalba v. Brady, 162 A.D.3d 533, 80 N.Y.S.3d 220 [1st Dept. 2018] ). There was no evidence of an amended certificate of incorporation that changed the principal place of business to Nassau County.
The general rule is that a transitory action, such as the subject motor vehicle accident, when other things are equal, should be tried in the county where the cause of action arose (see Slavin v. Whispell, 5 A.D.2d 296, 297–298, 171 N.Y.S.2d 892 [1st Dept. 1958] ). This rule, however, is predicated on the convenience of material nonparty witnesses who are to be present at trial (see Iassinski v. Vassiliev, 220 A.D.2d 372, 633 N.Y.S.2d 281 [1st Dept. 1995] ; Clinton v. Griffin, 176 A.D.2d 501, 502, 574 N.Y.S.2d 692 [1st Dept. 1991] ; Boriskin v. Long Is. Jewish–Hillside Med. Ctr., S. Shore Div., 85 A.D.2d 523, 444 N.Y.S.2d 618 [1st Dept. 1981] ). While the situs of the accident provides a basis to change venue to Nassau County, defendants failed to sustain their burden, as the party moving for a discretionary change of venue pursuant to CPLR 510(3), that there are material witnesses who would be inconvenienced by a trial in New York County (see Manzari v. Burrows, 89 A.D.3d 440, 931 N.Y.S.2d 864 [1st Dept. 2011] ; Margolis v. United Parcel Serv., Inc., 57 A.D.3d 371, 372, 870 N.Y.S.2d 252 [1st Dept. 2008] ; Krochta v. On Time Delivery Serv., Inc., 62 A.D.3d 579, 580–581, 879 N.Y.S.2d 428 [1st Dept. 2009] ; Heinemann v. Grunfeld, 224 A.D.2d 204, 637 N.Y.S.2d 141 [1st Dept. 1996] ).