Opinion
07612/08.
Decided October 24, 2008.
Meltzer, Lippe, Goldstein Breitstone, LLP, Mineola, New York, COUNSEL FOR PLAINTIFF.
L'Abatte, Balkan, Colavita Contini, LLP, Garden City, New York, COUNSEL FOR DEFENDANT.
Defendants, Eric Russo, Esq. and Vanbrunt, Juzwiak Russo, P.C., move for an order pursuant to CPLR 503(a) and 511(b) changing the venue of this action to Supreme Court, Suffolk County and, upon such transfer, directing a joint trial of the action with R.D. Best Land Construction Corp. v. Trust Under the Will of Nick Gallipoli, et al. (Suffolk County Index No. 14207/08) ("Suffolk Action").
Plaintiff, The Trust U/W/O Nick Gallipoli, cross-moves for an order pursuant to CPLR 510 and 511 directing that venue of this action remain in Nassau County.
BACKGROUND
In this action, which was commenced on April 24, 2008, Plaintiff, The Trust U/W/O Nick Gallipoli ("Trust"), seeks to recover damages for legal malpractice and breach of fiduciary duty. Defendants, Eric Russo, Esq. and Vanbrunt, Juzwiak Russo, P.C. represented the Trust with respect to its interest in commercial property located in Suffolk County which the Trust had leased to R.D. Best Land Construction Corp. ("R.D. Best") on a month-to-month basis. More specifically, from on or about April 2, 2006 to on or about August 15, 2007, the Defendant attorneys represented the Trust with respect to a summons levied against The Trust by the Town of Brookhaven beginning in June, 2006 on account of the excessive construction materials and other debris on the property, as well as against R.D. Best with respect to its dumping these materials and its tenancy. The Trust alleges that the Defendant attorneys' mishandling of these matters caused it to incur substantial damages owing to the environmental remediation that was necessitated by the continued dumping.
In the Suffolk Action, which was commenced on April 23, 2008, R.D. Best, as tenant, seeks to recover from the Trust, as landlord, and Ralph Gallipoli, Nancy Gallipoli-Barrie, improperly sued there as "Nancy Gallipoli", Louann Gallipoli-Tuzza, improperly sued there as "Jane" Gallipoli and Angela Gallipoli-Newham, improperly sued there as "Joan" Gallipoli, for tortious interference with contract. R.D. Best alleges that the Trust refused to release 100,00 square yards of clean fill and screening plant equipment which caused it to lose revenues.
In this action, the Trust alleges that the Defendant attorneys committed legal malpractice by failing to compel R.D. Best to remove construction material and other debris and by failing to prevent R.D. Best's continued illegal dumping on the Trust's property, causing the Trust to sustain substantial damages and incur the cost of removal of the construction materials and other debris. In the Suffolk County Action, R.D. Best alleges that the Trust prevented it from removing and selling 100,000 cubic yards of "clean fill" to a third party and from retaking its screening plant equipment. The Defendant attorneys maintain that they cannot be held liable for legal malpractice for failing to compel R.D. Best to remove the alleged construction materials and other debris from the Premises which R.D. Best alleges was clean fill if R.D. Best was ready, willing and able to do so but was prevented from doing so by the Trust. Thus, they maintain that common issues exist between the two actions.
DISCUSSION
On June 20, 2008, the Defendant attorneys served a Demand to Change Venue of this action to Suffolk County pursuant to CPLR 511(b). On June 27, 2008, the Trust served an Affidavit in Support of Venue in Nassau County pursuant to CPLR 511(b). The Trust maintained that it could not obtain a fair and impartial trial in Suffolk County because Defendant Russo's father-in-law is a retired Suffolk County Supreme Court Justice; one of the Defendant law firm's associate's mother is a Suffolk County District Court Judge in the First District; Russo is politically active in Suffolk County; and, because the "public outcry" against the alleged nuisance which is the subject of this action the dumping prejudiced local residents and potential jury members against Plaintiff.
The Defendant attorneys now move to change venue of this action to Suffolk County pursuant to CPLR 503(a) and 511(b). The Trust cross-moves to have this Court retain jurisdiction pursuant to CPLR 510(2) and 511.
CPLR 503(a) provides:
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 Plaintiff.
The venue of an action should be where at least one of the parties resides when the action is commenced. See, Hitchoff v. Air Brook Limousine, Inc. , 26 AD3d 310 (2nd Dept. 2006); and Fisher v. Finnegan-Curtis , 8 AD3d 527 (2nd Dept. 2004). When a party places venue improperly, it forfeits its right to select it. Hitchoff v. Air Brook Limousine, Inc., supra; Ruiz v. Lazala , 26 AD3d 366 (2nd Dept. 2006); and Fisher v. Finnegan-Curtis, supra. However, even when a plaintiff commences an action in an improper venue, a court may entertain its motion to change venue, including a retention of venue, as a matter of discretion. See, Pickering v. Westchester County Health Care Corp. , 41 AD3d 454 (2nd Dept. 2007); Ruiz v. Lazala, supra; Agostino Antiques, Ltd. v. CGU-American Employers Ins. Co. , 6 AD3d 469 (2nd Dept. 2004); Mei Ying Wu v. Waldbaum, Inc., 284 AD2d 434 (2nd Dept. 2001); DelValle v. Baldor Elec. Co., 265 AD2d 445 (2nd Dept. 1999); and Berberich v. York Scaffold Equipment Corp., 177 AD2d 451 (1st Dept. 1991).
Both of the parties to this action reside in Suffolk County. The property involved is in Suffolk County as well. Therefore, absent a valid basis, venue of this action in Nassau County does not lie. CPLR 503(a).
Turning to the Trust's motion, a party seeking to have venue exercised on the grounds that an impartial trial cannot be had bears a heavy burden. See, DeBolt v. Barbosa, 280 AD2d 821 (3rd Dept. 2001). To obtain a change in venue pursuant to CPLR 510(2), "[t]he movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained". Behrins Behrins, P.C. v. Chan , 40 AD3d 560 (2nd Dept. 2007), citing Field v. Schultz, 288 AD2d 177 (2nd Dept. 2001); and Albanese v. West Nassau Mental Health Ctr., 208 AD2d 665 (2nd Dept. 1994). See also, Krupka v. County of Westchester, 160 AD2d 681 (2nd Dept. 1990), citing Thomas v. Small, 121 AD2d 622 (2nd Dept. 1986). "Conclusory allegations, beliefs, suspicions and feelings of possible bias are inadequate." Behrins Behrins, P.C. v. Chan, supra. See also, Cohen v. Bernstein , 9 AD3d 573 (3rd Dept. 2004); Locker v. 670 Apts. Corp., 232 AD2d 716 (1st Dept. 1996); Krupka v. County of Westchester, supra; Thomas v. Small, supra; Clausi v. Hudson Cement Co., 26 AD2d 872, 873 (3rd Dept. 1966); Fishman v. Fishman, 20 AD2d 941 (3rd Dept. 1964), app. dism. 15 NY2d 482 (1964).
Defendant Russo is the son-in-law of a former Suffolk County Supreme Court Justice who retired four years ago. An associate at the Defendant attorneys' law practice is a daughter of a Suffolk County District Court Judge. Trustee Nancy Gallipoli-Barrie opines that she "knows Mr. Russo is politically active in Suffolk County as [she] believe[s] Mr. Russo previously held the offices of the Deputy Supervisor for the Town of Brookhaven and Bellport Village Attorney [and] that Mr. Russo has a friendship with at least one of the two Commercial Division Justices that this matter would be assigned to if transferred to Suffolk." She also believes that Defendant Russo's friendship with Richard I. Scheyer, Esq., who represents R.D. Best in the Suffolk County action, is of concern. More specifically, she states that she believes that Mr. Scheyer met with Defendant Russo while he was representing the Trust; that Scheyer told Russo that R.D. Best's principal Dalcamo was working as an undercover agent for the F.B.I.; and, that Russo both failed to inform the Trust of such and failed to stop R.D. Best's continued dumping of construction material and other debris on the Trust's property based on Scheyer's representation. Thus, Ms. Gallipoli-Barrie opines that if this action is transferred to Suffolk County and consolidated with the Suffolk Action, the Trust's prosecution of this action will be compromised on account of Scheyer's relationship with Defendant Russo. Ms. Gallipoli-Barrie also claims to have observed her neighbors' vocal dissatisfaction over the nuisance R.D. Best created at the property. In addition, She points out that Nassau County is not an inconvenient venue.
"The mere fact that a party to an action is of some prominence or holds an official position in the county does not justify an inference that an impartial trial cannot be had in that county." Ingo v. Casey, 175 Misc. 805 (Sup.Ct. Westchester Co.), aff'd., 260 App. Div. 1024 (2nd Dept. 1940); Markowitz v Makura, Inc. , 29 AD3d 650 (2nd Dept. 2006) (that plaintiff is a public official elected by the voters does not establish defendant's inability to obtain a fair trial); Cohen v. Bernstein, supra (that plaintiff's father was a County Attorney and his step-mother was a Family Court Judge does not establish the defendant's inability to obtain a fair trial); Locker v. 670 Apartments Corp., supra (the fact that plaintiff's wife is a law clerk to a Supreme Court Justice in County does not establish that an impartial trial cannot be had there); and Jablonski v. Trost, 245 AD2d 338 (2nd Dept. 1997) (that defendants' power and standing in community does not establish the plaintiff's inability to obtain an impartial trial). Should this case be assigned to a Judge who is a friend of Russo or is otherwise not impartial an application for recusal can be made. The relationships of Defendant Russo and the Defendant attorneys' law practice's associate to a former Suffolk County Supreme Court Judge and a Suffolk County District Court Judge, respectively, do not require that venue be placed elsewhere. Nor does Defendant Russo's former relationship to the Town of Brookhaven or the Village of Bellport. Russo last served as Deputy Supervisor for the Town of Brookhaven on December 31, 1985, nearly 23 years ago, and has not served as the Village Attorney for the Village of Bellport for almost three years.
The cases relied on by the Trust are distinguishable. In Saxe v. OB/GYN Associates, P.C., 86 NY2d 820 (1995), and DeLuca v. CBS, Inc., 105 AD2d 770 (2nd Dept. 1984), one of the parties was a sitting Supreme Court Justice in the court in which the action was commenced. In Milazzo v. Long Island Lighting Co., ( 106 AD2d 495 (2nd Dept. 1984), the plaintiff was a law secretary to two sitting Justices in the court in which the action was commenced. In Burstein v. Greene ( 61 AD2d 827 (2nd Dept. 1978), the plaintiff's spouse was a sitting Supreme Court Justice in the court where the action was commenced and similarly, in Amann v. Caccese ( 223 AD2d 663 (2nd Dept. 1996), the plaintiff was a daughter of a sitting Supreme Court Justice. In Arkwright v. Steinbugler, 283 A.D. 397 (2nd Dept. 1954), rearg. and lv. app. den., 283 A.D. 873 (2nd Dept. 1954), the plaintiff had a "close brotherly relationship with all the Justices on the Bench" in the court where the action was commenced. In fact, the Milazzo Court stated that "[n]ot every relationship with a Justice necessitates disqualifying the entire court." 106 AD2d at 495. The Milazzo case was transferred from Nassau County to New York County because New York County was the more convenient location. Here, Suffolk is plainly the more convenient location.
The Trust's cry of countywide bias is similarly unavailing. The issues presented in this case are not countywide issues and affected jurors can easily be excluded from the panel. See, Babylon Associates v. Suffolk County, 89 AD2d 57 (2nd Dept. 1982).
The Defendant attorneys' application for consolidation and/or joint trial of this action with R.D. Best Land Construction Corp. v. Trust Under the Will of Nick Gallipoli,
et al. is respectfully referred to the Justice assigned in the Supreme Court, Suffolk County.
Accordingly, it is,
ORDERED, that Defendants' motion for a change of venue of this action to Suffolk County is granted. The Clerk of the County of Nassau is directed to transfer all papers filed in this action to the Clerk of Supreme Court Suffolk County upon service of a copy of this Order and payment of the appropriate fees.
This constitutes the decision and Order of the Court.