Key Takeaway
Court dismisses venue change motion when defendant fails to prove plaintiff's improper venue choice with sufficient evidence beyond accident report.
This article is part of our ongoing venue coverage, with 3 published articles analyzing venue issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Chehab v Roitman, 2014 NY Slip Op 05939 (2d Dept. 2014)
I have to give credit to Alla Kleban for locating this case. Admittedly, I just scanned this one and did not pick up on any salient facts. But there are many.
Burden on a defendant moving under CPLR 510(1)
“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that choice of venue is proper” (Gonzalez v Sun Moon Enters. Corp., 53 AD3d 526, 526; see CPLR 511; see also Lopez v K. Angle K Inc., 24 AD3d 422, 423). To succeed on his motion here, the defendant was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in the county that was designated by the plaintiff (see Ramos v Cooper Tire & Rubber Co., 62 AD3d 773; Baez v Marcus, 58 AD3d 585, 586; Corea v Browne, 45 AD3d 623, 624; see also Fiallos v New York Univ. Hosp., 85 AD3d 678, 678; Clarke v Ahern Prod. Servs., 181 AD2d 514, 515;Bradley v Plaisted, 277 App Div 620, 621). Only if the defendant made such a showing was the plaintiff required to establish, in opposition, via documentary evidence, that the venue he selected was proper (see Buziashvili v Ryan, 264 AD2d 797).
Here, the sole piece of evidence that the defendant submitted with respect to the issue of the plaintiff’s residence was the police accident report referable to the subject car accident. This evidence merely showed that, at the time the accident occurred, the plaintiff had a residence in Texas. This evidence did not demonstrate that the plaintiff did not maintain a residence in Kings County at the time when the action was commenced, two months after the accident (see Ramos v Cooper Tire & Rubber Co., 62 AD3d at 773; Baez v Marcus, 58 AD3d at 586; Corea v Browne, 45 AD3d at 624; see also Fiallos v New York Univ. Hosp., 85 AD3d at 678; Clarke v Ahern Prod. Servs., 181 AD2d at 515; Bradley v Plaisted, 277 App Div at 621). Consequently, the defendant failed to meet his initial burden.
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Police accident report as proof of a plaintiff’s residence
Although a plaintiff may choose venue based solely on a defendant’s address, as set forth in a police accident report (see Gonzalez v Weiss, 38 AD3d 492, 493; Furth v ELRAC, Inc., 11 AD3d at 510), a police accident report, standing alone, is not sufficient evidence to demonstrate that, on the date that an action is commenced, a plaintiff does not reside in the county where he or she elects to place the venue of trial. To the extent that this Court’s decisions in Samuel v Green (276 AD2d 687) and Senzon v Uveges (265 AD2d 476) may be read to indicate to the contrary, they should not be followed.
Accordingly, the Supreme Court properly denied the defendant’s motion to change the venue “
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,600 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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May 24, 2012Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
How is proper venue determined in New York civil cases?
Venue is set by CPLR Article 5. Under CPLR 503(a), except where otherwise prescribed by law, the place of trial is the county in which one of the parties resided when the action was commenced, or the county in which a substantial part of the events or omissions giving rise to the claim occurred, or, if no party then resided in the state, any county the plaintiff designates. A party resident in more than one county is a resident of each. Under CPLR 503(c), a corporation is a resident of the county of its principal office; CPLR 503(d) applies a similar rule to partnerships and individually owned businesses.
Can a case be transferred to a different venue?
A case can be moved by motion. Under CPLR 510, the court may change the place of trial where the county designated is not a proper county, where there is reason to believe an impartial trial cannot be had in the proper county, or where the convenience of material witnesses and the ends of justice will be promoted by the change. Timing is strict for the first ground: under CPLR 511(a) and (b), the defendant must serve a written demand for the proper county with or before the answer, and may then move within 15 days after the demand unless the plaintiff consents within five days.
Does venue matter in no-fault insurance cases?
Venue matters because it decides which courthouse, which judges and which local rules apply. Most no-fault suits are brought in the New York City Civil Court or the Nassau and Suffolk District Courts, whose money jurisdiction is $50,000 under New York City Civil Court Act § 202 and $15,000 under Uniform District Court Act § 202. Within a court, venue follows CPLR 503(a): the county where a party resided when the action was commenced or where a substantial part of the events occurred, with a corporation resident where its principal office is under CPLR 503(c). The substantive no-fault rules in 11 NYCRR Part 65 are the same everywhere.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a venue matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
