Magee v. Hutcher

Jun 20, 1991
Versions:174 A.D.2d 941
571 N.Y.S.2d 637
1991 N.Y. App. Div. LEXIS 8651

—Appeal (transferred to this court by order of the Appellate Division, Second Department) from that part of an order of the Supreme Court (Dickinson, J.), entered May 29, 1990 in Putnam County, which granted plaintiffs’ motion for a change of venue.

Although defendants do not oppose consolidation of this matter, they do contend that because they commenced their action first in New York County, Supreme Court erred in fixing the place of trial in Putnam County where the second action was commenced. However, while it is generally true that, in the absence of special circumstances, venue of a consolidated action should be where the first action was instituted (see, Strasser v Neuringer, 137 AD2d 750; Boyea v Lambeth, 33 AD2d 928), the final decision rests in the discretion of the court and any circumstances may be considered which negate placing venue where the first action was commenced (Perinton Assocs. v Heicklen Farms, 67 AD2d 832). Furthermore, venue should normally be in the county where the claim arose (Jansen v Bernhang, 149 AD2d 468). Here, the claim arose in Putnam County, defendants maintain a residence in that County, an earlier trial could be had there and the convenience of the witnesses would be served by a trial in that County (see, Colburn v Brown, 23 AD2d 574). These facts establish the special circumstances required for setting venue in Putnam County even though the first action was commenced in New York County (see, Boyea v Lambeth, supra). Defendants’ remaining contentions have been considered and found to be lacking in merit.

Casey, J. P., Yesawich Jr., Mercure, Crew III and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.