Supreme Court venueMay 24, 2012

Valley Psychological, P.C. v Government Employees Ins. Co., 2012 NY Slip Op 03921 (3d Dept. 2012)

“Initially, we note that there is no dispute that defendant had the right to file an amended answer to the complaint (see CPLR 3025 [a]), and since that amended answer superceded its prior answer, defendant had the right to serve with it a demand for a change of venue (see Penniman v Fuller & Warren Co., 133 NY 442, 444 [1892]; Corea v Browne, 45 AD3d 623, 634 [2007]). Since defendant’s motion to change venue was filed within 15 days of the service of that demand, Supreme Court should not have denied it as untimely. Parenthetically, we note that the amended answer contained nine additional affirmative defenses and there is no indication that it was filed to delay the prosecution of this action (see Boro Kitchen Cabinets v Spalt, 9 AD2d 925, 925 [1959]).”

“As for defendant’s contention that it was entitled to a change of venue as a matter of right, it argues that venue in Albany County was improper because neither party’s principal place of business is located there. In that regard, “a corporation is deemed a resident of the county in which its principal office is located” (Lombardi Assoc. v Champion Ambulette Serv., 270 AD2d 775, 776 [2000]), and “for the purposes of CPLR 503 (c), the location of a corporation’s principal office is determined solely by the designation in its certificate of incorporation” (id.; see Bakht v Southridge Coop. Section 4, Inc., 70 AD3d 988 [2010]; Biaggi & Biaggi v 175 Med. Vision Props., LLC, 70 AD3d 880 [2010]; Addo v Melnick, 61 AD3d 453 [2009]). Plaintiff’s certificate of incorporation designates Westchester County as its principal place of business. Defendant is a foreign corporation and is not required to designate a principal place of business in such a certificate (see Insurance Law § 108 [e]; Business Corporation Law § 1304 [a] [5]; Providence Washington Ins. Co. v Squier Corp., 31 AD2d 514, 514 [1968]), but maintains that its principal place of business in this state is located in Nassau County. Therefore, Albany County was not a proper venue for this action [FN1] (see Insurance Law § 108 [e]; Business Corporation Law § 1304 [a] [5]), and defendant was entitled to a change of venue as a matter of right (see CPLR 510 [1]; 511 [a]).”

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