Opinion
August 12, 1970
In a proceeding under section 330 of the Election Law to nullify the result of the Democratic primary election for the office of Member of the House of Representatives of the 21st Congressional District of the State of New York, and to direct the holding of a new primary election for the said office, Peter F. Vallone, an aggrieved candidate, appeals from an order of the Supreme Court, Queens County, entered August 3, 1970, granting the motion of respondent Herman Badillo to change the venue of the proceeding from the Supreme Court, Queens County, to the Supreme Court, Bronx County. Order reversed, on the law and the facts, without costs, and motion denied, without costs. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. In our opinion, appellant, a resident of Queens County, faced with the necessity of presenting evidence to sustain his burden of proof in support of his petition, selected that county, as was his right, as the venue of this proceeding. The controversy in issue involves election districts in divers sections of Queens, Bronx and New York counties, which are included in the 21st Congressional District. Under the circumstances: the location of the counties involved and the county selected by petitioner for the venue being the county wherein petitioner resides and wherein the controversy in part arose, it may not be said that such selection was improper under the provisions of the applicable statute (CPLR, art. 5). In the interest of orderly procedure with respect to a primary election controversy involving adjoining counties within the City of New York, lying in different judicial districts and departments, venue should remain in the county rightfully selected by the party bearing the burden of proof. The general rule here stated does not preclude a change of venue upon motion pursuant to statute (CPLR 510). At bar, respondent Badillo made such motion predicated on the convenience of material witnesses and the ends of justice. However, we find that he failed to sustain his burden of establishing the requisite factual basis for the motion on the grounds alleged ( Geneva Trust Co. v. Boston Maine R.R., 212 App. Div. 695; Sanders v. Prescott, 234 App. Div. 899; Dairymen's League Co-operative Assn. v. Brundo, 131 Misc. 548). The mere tabulation in a bill of particulars indicating that 80% of the alleged irregularities occurred in Bronx County does not serve substantively to sustain the moving party's burden of proof. It may also be noted that in this modern era, travel from one county to another within the City of New York may not be deemed, on the facts of this case, so inconvenient as to warrant a change of venue within the same city ( Luhrs v. Heim, 203 App. Div. 864; Mumford v. Cammann, 3 Caines 139). On the facts in this record, it may not be held that the convenience of material witnesses and the ends of justice will be promoted by a change of venue in this proceeding. Accordingly, we find that the granting of the motion was erroneous; it constituted an improvident exercise of discretion. Christ, P.J., Rabin, Munder and Brennan, JJ., concur.