First Department affirms denial of motion to transfer venue based upon the convenience of material witnesses, where both plaintiff and defendant submitted affidavits from material witnesses, averring they would be inconvenienced

In Barresi v Halls Boat, LLC, 2023 NY Slip Op 02964 (1st Dept. 2023) the First Department held that Justice Elizabeth Taylor providently exercised her discretion in denying defendant’s motion to change venue from Bronx to Warren County, where the accident occurred.  Venue was proper in Bronx County based on plaintiff’s residence in that county pursuant to CPLR 503(b).  Having properly placed venue in the first instance, “a discretionary change of venue based on the convenience of witnesses will be granted only after there has been a detailed evidentiary showing that the convenience of nonparty witnesses would be served by the granting of such relief (10 Two Trees Lane LLC v Mahoney, 192 AD3d 468, 469 (1st Dept. 2021).”

The burden is on the party seeking the change of venue, and both sides submitted affidavits from witnesses.  While the First Department’s affirmance of the denial of the motion made clear both sets of affidavits were considered, it was also clear that defendant’s submissions in support of the motion were lacking:

Defendant failed to meet its burden of demonstrating that a change of venue for the convenience of material witnesses was warranted. Defendant submitted affidavits of three law enforcement officers employed by Warren County who were involved in the search of plaintiff’s decedent and the recovery of the snowmobile after the accident, and an Emergency Medical Technician employed by the Town of Lake George who rode in the ambulance with the decedent after the accident. The affidavits, which merely set forth brief and vague descriptions of the witnesses’ proposed testimony, were insufficient to show that the testimony would be material and relevant to the issue of defendant’s liability and damages (see Moghazeh v Valdes-Rodriguez, 151 AD2d 428, 429 [1st Dept 1989]). The witnesses’ failure to disclose their complete addresses, however, did not render defendant’s motion fatally flawed, since the affidavits reflect that they reside in Warren County (see Kochan v Target Corp., 161 AD3d 499, 500 [1st Dept 2018]).

Defendant also submitted affidavits of three employees who assisted in the search, observed conditions related to the accident, and are familiar with defendant’s maintenance and the condition of its dock and facilities. Although these witnesses could provide relevant testimony on material issues, the convenience of employee witnesses is “not a weighty factor” (see Martinez v Dutchess Landaq, Inc., 301 AD2d 424, 425-426 [1st Dept 2003] [internal quotation marks omitted]).

Barresi v Halls Boat, LLC, 2023 NY Slip Op 02964 (1st Dept. 2023).

The Court described the affidavits furnished by plaintiff in opposition to the motion and concluded that, balancing the competing submissions, retention of venue in Bronx County was proper:

Plaintiff, on the other hand, submitted affidavits of six individuals who accompanied plaintiff’s decedent on the trip, all of whom are firefighters employed in Bronx County, and who averred that they would be inconvenienced by having to travel to Warren County to testify. Their affidavits show they could provide relevant testimony as to the material issues of liability and damages. The foregoing weighs in favor of maintaining the action in Bronx County (see Neos v Crabby Joe’s, 241 AD2d 337 [1st Dept 1997]).

Barresi v Halls Boat, LLC, 2023 NY Slip Op 02964 (1st Dept. 2023).

Decision Date: June 6, 2023

Practical Practice Point

The venue in which an action is tried is often a significant factor in the ultimate resolution of a case.  Most litigators can reel off a list of “plaintiff-friendly” and “defendant-friendly” venues, and their lists will likely be identical.  And the impact of venue is often apparent from the earliest negotiations, at mediation, and, finally, at trial, where venue can influence not only the amount of damages awarded, but the outcome of the trial.

In Barresi, venue was based on CPLR 503(b):

(b) Executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver. An executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver shall be deemed a resident of the county of his appointment as well as the county in which he actually resides.

It is important to remember that if plaintiff selects an improper venue, and defendant does not timely and properly object, CPLR 509 provides that the case will be tried in that venue notwithstanding the fact that there was no statutory basis for placement in the county selected:

Notwithstanding any provision of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order upon motion, or by consent as provided in subdivision (b) of rule 511.

CPLR 510 sets forth the bases for a motion to change venue:

The court, upon motion, may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in the proper county; or

3. the convenience of material witnesses and the ends of justice will be promoted by the change.

A decision cited in Barresi, Moghazeh v Valdes-Rodriguez, 151 AD2d 428 (1st Dept. 1989), which ironically also involved a motion to change venue to Warren County, is a useful guide to what not to do when moving pursuant to CPLR 510(3):

In support of their application for a change of venue to Warren County, on the basis of convenience to material witnesses, defendants state that “[police] officers witnessed the condition of the roadway where the accident occurred, the condition of the plaintiff and the vehicle involved in the accident”. Defendants neither elaborate as to what the conditions alluded to were nor otherwise indicate how they may be material or relevant to the lawsuit. Similarly faulty is defendants’ reliance upon the anticipated testimony of two civilian witnesses to the effect that, when they arrived, plaintiff was not wearing a seat belt, and was able to ambulate without assistance. This testimony offers no assistance with respect to whether the seat belt was in use at the time of the accident, and certainly cannot be accorded greater weight on the issue of plaintiff’s physical condition than the medical testimony. Moreover, the testimony of these witnesses would, in any event, relate solely to damages, rather than liability. In light of all of these circumstances, the convenience of these two witnesses does not constitute an adequate basis for a change of venue. (See, Wecht v Glen Distribs. Co., 112 AD2d 891; Green v Shortts, supra.) Nor does the unspecified testimony of unidentified members of an ambulance squad and an automobile towing service, also offered in support of the motion, provide a ground for this relief.  ( Wecht v Glen Distribs. Co., supra, at 893.)

Finally, we note that while the order appealed from granted defendants’ motion pursuant to CPLR 510 (3), there is also no basis for a change of venue pursuant to CPLR 510 (1). Under CPLR 503 (a), a party may have two residences for venue purposes and, upon review of this record, we conclude that plaintiff adequately established residence in Bronx County. The choice of venue having been proper, and there being no other grounds for a change thereof, it was error for the court to have granted defendants’ motion.  ( Torriero v Austin Truck Rental, 143 AD2d 595.)