HVT, Inc. v. Safeco Insurance of AmericaHVT, Inc. v. Safeco Insurance of America
HVT, Inc., Respondent, v Safeco Insurance Company of America, Appellant, et al., Defendant.
Second Department, September 14, 2010
Jaffe & Asher, LLP, New York City (Marshall T. Potashner and Fred H. Bicknese of counsel), for appellant.
Webster Szanyi LLP, Buffalo (Thomas S. Lane of counsel), for respondent.
OPINION OF THE COURT
Dickerson, J.
Introduction
On this appeal, we must determine whethеr an affidavit served by a plaintiff in accordance with
The Complaint and Amended Complaint
The plaintiff, HVT, Inc., commenced this action against the defendant Safeco Insurance Company of America (hereinafter Safeco) by the filing of a summons and complaint dated June 23, 2009. In the complaint, the plaintiff stated that the defendant Anne Sullivan Polino (hereinafter Polino) leased a vehicle from it, and that the subject lease required her to obtain insurance which would cover it. According to the plaintiff, Safeco issued an insurance policy to nonparty Cosimo Polino, Polino‘s husband. The plaintiff claimed that Polino was also an insured under the policy.
After Polino was involved in a motor vehicle collision, nonparties Dennis Herdendorf and Nancy Herdendorf commenced an underlying personal injury action against both Polino and the plaintiff in the Supreme Court, Erie County (hereinafter the underlying action). According to the plaintiff, under the terms of the subject insurance policy, Safeco was obligated to defend it against any claim seeking damages payable under the terms of the policy, and to pay all defense costs.
The plaintiff claimed that, initially, the same attorney, presumably provided by Safeco, reprеsented both it and Polino in the underlying action. However, as the underlying action proceeded, the plaintiff allegedly discovered certain facts, not disclosed here, which revealed that it would no longer be appropriate for the plaintiff and Polino to be represented by the same attorney.
On or about February 23, 2009 the plaintiff allegedly requested that Safeco provide it with separate counsel of its choosing in the underlying action, but Safeco refused.
In the first cause of action, the plaintiff sought a judgment declaring that Safeco was obligated to defend and indemnify it in the underlying action. In the second cause of action, the plaintiff claimed that Safeco breached its contractual duty under the policy to provide it with a defense in the underlying action. Accordingly, the plaintiff claimed that it was entitled to recover all damages incurred, including defense fees and expenses.
The plaintiff served a supplemental summons and an amended complaint dated August 5, 2009, adding Polino as a defendant. The plaintiff claimed that Polino was “an interested and necessary party in this action as she is a party to and the primary insured under the aforementioned policy of insurance and, in
Safeco‘s Demand for Change of Place of Trial
Approximately one month before the plaintiff served its amended complaint adding Polino as a defendant, Safeco served a demand for change of place of trial (see
In response to Safeco‘s demand, the plaintiff served an affidavit, sworn to by its attorney, Thomas S. Lane. Lane claimed that venue in Erie County was proper. He emphasized a number of factors which allegedly provided a nexus between this action and Erie County. However, there was no representation in the affidavit concerning the residencе or principal place of business of either the plaintiff or Safeco.
Safeco‘s Motion to Change Venue
By notice of motion dated July 17, 2009, Safeco moved, in Westchester County, pursuant to
The Plaintiff‘s Cross Motion
The plaintiff cross-moved to compel the hearing and determination, in Erie County, of Safeco‘s pending motion for change of venue. It also opposed Safeco‘s motion for a change of venue
The plaintiff further contended that the venue in Erie County was proper, observing that Polino, now a party to the action, resides in Buffalo, located in Erie County.
The plaintiff also asserted that the Supreme Court should retain venue in Erie County for a variety of reasons pertaining to the convenience of the witnesses and the nexus between Erie County and the underlying action.
In opposition to the plaintiff‘s cross motion, Safeco reiterated its contention that neither the plaintiff nor Safeco resided in Erie County. Thus, according to Safeco, Erie County was not a proper venue for this action. Safeco also asserted that the residency of Polino, who was added as a defendant some time after the commencement of this action, was irrelevant to the venue analysis, which hinges solely on the residence of the parties as of the date of the commencement of the action.
The Order Appealed from
In an order dated October 6, 2009, the Supreme Court, Westchester County, inter alia, granted that branch of the plaintiff‘s cross motion which was to compel the hearing and determination, in Erie County, of Safeco‘s pending motion to change venue. The Supreme Court wrote that “as long as a plaintiff timely responds by affidavit to a defendant‘s Demand to Change Venue and prima facie establishes that venue in the county where the action was commenced is proper, any motion with respect thereto must be made in the County where the action is pending.” Accordingly, the Supreme Court determined that it could not properly entertain Safeco‘s motion to change venue.
Analysis
Safeco asserts on appeal that, since the original affidavit served by the рlaintiff in response to Safeco‘s demand to change venue did not address the residency of either the plaintiff or Safeco, it was, for the purpose of
The plaintiff responds that, pursuant to
We find that, because it contained no representations whatsoever concerning the residency of the parties, the only basis for venue in this action (see
Basis for Proper Venue in this Action
CPLR 511 (b)
“The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such sеrvice plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper” (
CPLR 511 [b] ).
Here, it is undisputed that Safeco served its demand for change of place of trial on July 8, 2009. It is also undisputed that the plaintiff served an affidavit, sworn to by Thomas S. Lane on or about July 13, 2009. Safecо does not claim that the plaintiff failed to timely respond to its demand within five days after service of the demand (see
The Supreme Court, in the order appealed from, relied on Ludlow Valve Mfg. Co. v S. S. Silberblatt, Inc. (14 AD2d 291 [1961]). On appeal, the plaintiff premises much of its argument on this case, which was decided in 1961 by the Appellate Division, First Department (hereinafter the First Department). As explained in Ludlow Valve, the Judicial Council, in its Seventh Annual Report (1941), recommended the adoption of
“If the plaintiff fail [sic] to serve upon the defend-
ant, within five days after service of the demand, an affidavit which shall set forth facts showing either that the county which the defendant claims is the proper county is not the proper one or that the county designated in the summons or complaint as the place of trial is the proper one, the defendant may, at his option, for the purposes of such motion, regard the county which he claims is the proper one as the county in which the action is triable within the meaning of rule sixty-three of these rules, and he may accordingly make the motion in the judicial district embracing such county, or in an adjoining county as provided in rule sixty-three” ( Rules Civ Prac rule 146 ).
In Ludlow Valve, the First Department, quoting the Judicial Council‘s report (at 296), stated,
“In order to avoid confusion and to protect the courts against being swamped with collateral motions, no opportunity is afforded the defendant, under the proposal, fоr testing the sufficiency of any affidavit served pursuant thereto. The mere service of the affidavit will be sufficient to preclude the defendant from making his motion in what he claims is the proper county” (14 AD2d at 293-294 [internal quotation marks omitted]).
Considering the circumstances in the case before it, the First Department continued,
“Where, as in the instant case, plaintiff has submitted an affidavit containing averments tending to support plaintiff‘s choice of the place of trial and opposing the demanded change of venue, we hold that, for the purpose of determining jurisdiction to entertain a motion for a change of venue, the weight or sufficienсy of the averments is immaterial. At that juncture, the mere filing of such an affidavit mandates that the motion for a change of the place of trial be made in the judicial district in which the action was brought” (id. at 294).
In holding that the affidavit submitted by the plaintiff in Ludlow Valve prevented the defendant from having its motion heard in New York County, to which the defendant sought to have venue changed, the First Department “in no way pass[ed] on the adequacy of its averments to withstand a motion for
Later in the same year that the First Department decided Ludlow Valve, the Appellate Division, Third Department (hereinafter the Third Department), decided Payne v Civil Serv. Empls. Assn. (15 AD2d 265 [1961]), on which Safeco relies on this appeal. In Payne, the plaintiff commenced an action in New York County, and, on the summons, stated that he resided in New York County (id. at 266). The defendant timely served a demand to change the place of trial to Albany County, on the grounds that the plaintiff resided in Albany County, the principal office of the association on behalf of which the plaintiff commenced the action was in Albany County, and the principal office and place of business of the defendant was in Albany County (id. at 266-267). The plaintiff subsequently served an amended complaint stating that the рlace of trial would be Bronx County (id. at 267). Thereafter, in purported compliance with
The Third Department affirmed, stating that “[the plaintiff‘s] own affidavit under
The Third Department continued,
“We find unsound [the plaintiff‘s] further contention that the mere service of his affidavit, although it set forth none of the facts required by
rule 146 , deprived defendant of the right to move in AlbanyCounty, as permitted by the rule in case ‘plaintiff fail to serve . . . an affidavit which shall set forth facts showing either’ that, in this case, New York was the proper county or that Albany was not. The affidavit served was, in our view, ‘equivalent to no affidavit at all’ and, indeed, to give it any effect would be to nullify the salutary rule” (id. at 268).
The Third Departmеnt explained that its determination was not inconsistent with the First Department‘s decision in Ludlow Valve, stating, in this regard,
“In context . . . it is clear that the [Ludlow Valve] decision did not turn on the mere existence of a paper designated, or in form constituting an affidavit, but that the ‘sufficiency’ referred to, and as to which examination was inhibited, was the sufficiency of the factual averments set forth in the affidavit made pursuant to
rule 146 ; as plaintiff had, in fact, ‘submitted an affidavit containing averments tending to support plaintiff‘s choice of the place of trial‘, and the court held ‘that, for the purpose of determining jurisdiction to entertain a motion for a change of venue, the weight or sufficiency of the averments is immaterial.’ (p. 294.) . . . In the case before us, averments of residence are required but such averments ‘tending to support plaintiff‘s choice‘, or purporting to do so, are completely lacking and hence there are no averments to weigh. The rule allows defendant to move ‘in the county which he claims is the proper one, provided there is no dispute between the parties as to whether such county is the proper one’ and ‘it is to be assumed that there is no dispute’ if plaintiff shall fail to serve an affidavit ‘which shall set forth facts showing either that the county named by the defendant is not the proper one or that the county previously designated by the plaintiff as the place of trial is the proper one‘. (Seventh Annual Report of N.Y. Judicial Council, 1941, p. 296; emphasis supplied.)” (Payne v Civil Serv. Empls. Assn., 15 AD2d at 268-269).
Based, inter alia, on the statutory text, its underlying purpose, and our consideration of the relevant case law, we find that Safeco is correct that the plaintiff‘s affidavit in response to its demand was inadequate to prevent Safeco from having its motion heard in Westchester County. The relevant language in
Further, we conclude that the Third Department‘s discussion of Ludlow Valve was persuasive. The Third Department properly interpreted the statement in Ludlow Valve that “the weight or sufficiency of the averments is immaterial” (Ludlow Valve Mfg. Co. v S. S. Silberblatt, Inc., 14 AD2d at 294), to signify that “the ‘sufficiency’ referred to, and as to which examination was inhibited, was the sufficiency of the factual averments set forth in the affidavit” (Payne v Civil Serv. Empls. Assn., 15 AD2d at 268).
Thus, the Third Department was correct in concluding that a plaintiff‘s mere service of a document denominated an affidavit would be insufficient to satisfy that plaintiff‘s obligation under
The Judicial Council‘s concern that a defendant would have no opportunity to test the factual sufficiency of a plaintiff‘s affidavit, as the First Department concluded in Ludlow Valve, does not contradict the Third Department‘s reading of that case. It is true that, if defendants were permitted to challenge the factual averments in these types of affidavits, the courts could, indeed, be overwhelmed with collateral arguments and apрlications. However, the requirements of the statute can neither be ignored nor satisfied by service of an affidavit containing no representa-
This Court‘s body of case law does not directly address the issue. However, our relevant cases, some of which cite Ludlow Valve and others of which cite Payne, support the conclusion we reach today.
In United Jewish Appeal-Fedn. of Jеwish Philanthropies of N.Y., Inc. v Young Men‘s & Young Women‘s Hebrew Assn., Inc. (30 AD3d 504, 505 [2006]), this Court, citing Ludlow Valve, stated that “[t]he plaintiff served a timely and prima facie sufficient affidavit in opposition to that demand, showing that New York County was a proper venue for this action” (emphasis added). Thus, we recognized a need for judicial inquiry into the facial sufficiency of such an affidavit.
In Hughes v Nigro (108 AD2d 722, 723 [1985]), this Court relied on Ludlow Valve for the proposition that
“if, within five days after service of the defendant‘s demand for a change of venue, the plaintiff services an affidavit showing either that the county specified by the defendant is not proper or that the county specified by the plaintiff is proper, that motion must be made in the county in which the plaintiff had designated that the trial take place, subject to the rules with respect to motions in adjoining counties” (emphasis added).
In Kuzmin v Nevsky (51 AD3d 639, 640 [2008]), this Court relied on Payne in stating,
“In response [to the defendant‘s demand for change of place of trial], the plaintiff failed to serve a timely affidavit supporting venue in New York County (see
CPLR 511[b] ), and her untimely affidavit in fact confirmed that venue was improper in New York County but proper in Queens County. The defendant‘s subsequent timely motion to change venue to Queens County, in support of which she submitted the verified complaint, was thus properly heard, and granted, in Queens County” (emphasis added).
“Irrespective of the issue as to how this conflict is ultimately to be resolved, the mere service of the affidavit by appellants (which clearly tended to support their choice of venue) was sufficient to preclude respondent village from moving in Nassau County; and the motion herein should properly have been made returnable in New York County” (emphasis added).
In all of these cases, there is no consideration of the “sufficiency” of the factual averments set forth in the affidavits served by the plaintiffs. However, it is clearly required that the averments in the affidavits must facially support the plaintiff‘s choice of venue, or defeat the defendant‘s choice.
Accordingly, under the case law as well as the express language of
Jurisdiction to Entertain Safeco‘s Motion
Here, the plaintiff, in its affidavit, failed to make the showing required by
In any event, for purposes of this appeal, the effect, if any, of the addition of Polino and her status as a resident of Erie County need not be determined, as she was not a party at the times relevant to the issues before us (see
Under the circumstances of this case, residency was the sole consideration as to proper venue (see
Safeco, in its demand for change of place of trial, claimed that venue in Erie County was improper, and sought venue to be changed to Westchester County. Safeco also claimed that Westchester County would be a proper venue pursuant to
In the affidavit served by the plaintiff in response to Safeco‘s demand, the plaintiff‘s attorney made no representations whatsoever concerning residency of either of the parties or how their residency affected the propriety of venue in Westchester County. Thus, the plaintiff‘s affidavit failed to make the showing required by statute (see
The affidavit of the plaintiff‘s attorney included a number of statements allegedly indicating why venue in Erie County
Since the plaintiff, in response to Safeco‘s demand, failed to submit an affidavit making the necessary showing, Safeco was entitled to “notice [its] motion to be heard as if the action were pending in the county [it] specified” (
Conclusion
In light of the plaintiff‘s failure to serve a timely, facially sufficient affidavit, Safeco was entitled to have its motion to change venue heard in Westchester County. Accordingly, the order is reversed insofar as appealed from, on the law, that branch of the plaintiff‘s cross motion which was to compel the hearing and determination, in Erie County, of Safeco‘s pending motion pursuant to
Mastro, J.P., Belen and Roman, JJ., concur.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff‘s cross motion which was to compel the hearing and determination, in Erie County, of the pending motion of the defendant Safeco Insurance Company of America pursuant to