Opinion
229188.
Decided July 30, 2009.
Tobin and Dempf, LLP, Attorneys For Petitioners, Michael A. Costello, Esq., of counsel, Albany, New York.
John A. Aretakis, Respondent Pro Se, New York, New York.
In this special proceeding, respondent moves to change venue to New York County, to dismiss the proceeding, or to otherwise transfer the proceeding in the interests of justice. Petitioners oppose the motion.
Respondent argues that his primary and legal residence is New York County and that the underlying actions involved in this proceeding occurred in New York City. He notes that after the commencement of this action, he served an affidavit on June 2, 2009 contesting jurisdiction. He argues that petitioners' counsel attached a decision to his June 2, 2009 affidavit, which opposed the demand to change venue, that did not address primary residence and respondent contends that in New York City Housing Court in 2005-2006 "it was decided that my legal residence was in New York City". He argues that the underlying case was venued in New York City and that nothing relating to this special proceeding has anything to do with Rensselaer County. Respondent notes that counsel for petitioners is aware that respondent does not own real property in the Capital District and that he does not have a business office in the Capital District or Rensselaer County. He notes that his wife owns a home in Rensselaer County but argues that his legal residence is in New York City and New York County. Petitioners request a change of venue to New York County, dismissal for lack of jurisdiction, or transfer in the interest of justice.
Petitioners opposed respondent's demand to change venue by affidavit of counsel sworn to June 2, 2009, which is also incorporated in petitioners' opposition affidavit to the present motion. Petitioners argue that this is a special proceeding to enforce a sanction money judgment pursuant to CPLR Article 52 and that venue in Rensselaer County is proper under all the circumstances pursuant to CPLR 5521 and Rule 511. Petitioners attached a June 13, 2005 decision from the Supreme Court in New York County, which held that New York County was a proper venue in that case and which noted that a party can have more than one residence for venue purposes.
Petitioners have submitted an affidavit in opposition to the motion to change venue, arguing that although respondent no longer is on the deed to premises at 7 Coyote Lane, Town of North Greenbush, Rensselaer County, New York, he is still on the mortgage which requires the borrowers, respondent and his wife, to occupy the property as their principal residence during the term of the mortgage absent a different written agreement. Petitioners note that respondent and his wife took title to the property on July 25, 2001, and then executed a mortgage on July 26, 2001 as borrowers. On May 31, 2008, respondent and his wife signed a deed that conveyed to property to his wife alone.
CPLR 5221(a)(4) provides in relevant part as follows:
. . . if the judgment sought to be enforced was entered in any court of this state, a special proceeding authorized by this article shall be commenced, either in the supreme court or a county court, in a county in which the respondent resides or is regularly employed or has a place for the regular transaction of business in person or, if there is no such county, in any county in which he may be served or the county in which the judgment was entered.
CPLR 506 states the general rule that "a special proceeding may be commenced in any county within the judicial district where the proceeding is triable". CPLR 511 requires that "[t]he defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within 15 days after service of the demand, unless within 5 days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant made notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within 5 days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper."
On June 2, 2009 respondent asserts that he timely served an affidavit on petitioners contesting jurisdiction. Respondent notes in his affidavit in support of his motion to change venue, dated June 28, 2009 and filed June 29, 2009, that the motion was not made sooner "due to a family medical emergency." No further detail is provided and the Court does not find that this brief statement in respondent's affidavit is sufficient to explain the delay in filing the motion. In addition, respondent fails to provide any authority that the Court may overlook the timeliness of the motion based upon such a ground. Respondent's motion to change venue was untimely filed pursuant to the requirements of CPLR 511 ( Banks v New York State and Local Employees Retirement System, 271 AD2d 252 [1st Dept 2000]). Based upon the untimeliness of the motion, the Court is limited to considering only the grounds for a discretionary change of venue (CPLR 510; Kurfis v Shore Towers Condominium, 48 AD3rd 300 [1st Dept 2008]; Banks, supra; Pittman v Maher, 202 AD2d 172 [1st Dept 1994]).
The Court does not find that respondent has set forth grounds for a discretionary change of venue (CPLR 510; Banks, supra; Pittman, supra). Respondent fails to assert that there is reason to believe that an impartial trial cannot be had in the proper county or that the convenience of material witnesses and the ends of justice will be promoted by the change (CPLR 510, [3]). Additionally, while respondent argues that his primary and legal residence is in New York City, he acknowledges that his wife owns a home in Rensselaer County. He does not specifically address the amount of time he spends in Rensselaer County, or deny that he spends time in Rensselaer County, where his wife undisputedly resides. This is notable because petitioners had attached the above referenced 2005 Supreme Court decision to their affidavit in opposition to respondent's demand for change of venue. The decision details testimony of respondent and his wife regarding the fact that respondent spends time in both Rensselaer and New York counties. Additionally, petitioners note that respondent was served with process in the present proceeding at the premises of 7 Coyote Lane, North Greenbush, Rensselaer County.
Respondent is also on the mortgage if not the deed of that property as set forth by petitioners and the mortgage specifically notes that it is to be the borrowers' primary residence. Based upon the foregoing and all the facts and circumstances of this case, the Court notes that it would have denied respondent's motion to change venue if it had been timely filed pursuant to CPLR 511 ( see, e.g., Bennett v Bennett , 49 AD3d 949 [3d Dept 2008] [noting that a party may have multiple residences for venue purposes]). The Court also finds that there is insufficient proof to support a discretionary change of venue pursuant to CPLR 510.
Accordingly, it is
ORDERED, that respondent's motion is denied in its entirety.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the petitioners. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.