Galan v. Delacruz

Feb 17, 2004
Versions:4 A.D.3d 449
771 N.Y.S.2d 696

In an action to recover damages for personal injuries, the defendants Joaquim Pinto and Mime Construction Corp. appeal from an order of the Supreme Court, Queens County (Hart, J.), dated December 20, 2002, which, in effect, denied their motion to change venue to Westchester County and granted the plaintiffs cross motion to change venue to Bronx County.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the cross motion is denied; and it is further,

Ordered that the Clerk of the Supreme Court, Bronx County, is directed to deliver to the Clerk of the Supreme Court, Westchester County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511 [d]).

The plaintiff, a resident of Bronx County, improperly placed the venue of this action in Queens County, where none of the parties resides, thereby forfeiting his right to designate venue (see CPLR 503 [a]; Daly v Weintraub, 282 AD2d 643 [2001]; Bailon v Avis Rent A Car, 270 AD2d 439 [2000]). The appellants properly served a demand to change venue with their answer (see CPLR 511 [a]) and moved to change venue to Westchester County, which is a proper county, based on their place of residence. Therefore, the Supreme Court erred in denying the appellants’ motion to change venue to Westchester County and granting the plaintiffs cross motion to change venue to Bronx County (see Bailon v Avis Rent A Car, supra). Santucci, J.P., Goldstein, Schmidt and Cozier, JJ., concur.