On April 20, 1969, the defendant, Advance Publishers, Inc., published an article in its newspaper, the Staten Island Sunday Advance, which the plaintiff, Joseph Rae, claims libelled him. Mr. Rae, a Nassau County resident, brought suit for libel in the Nаssau County Supreme Court.
Defendants now move to change the place of trial from Nassau County to Richmond County. The moving affirmation urges as the grounds for changing the place of trial that the Staten Island Sunday Advance is published and circulated in Richmond County, and that the convenience of material witnesses and the ends of justice will be promoted by the change.
The motion is denied and the venue retained in Nassau County.
The plaintiff lives in Nassau County. Under CPLR 503 (subd. [a]), the plaintiff is legally entitled to bring suit in the county in which he lives. Since he lives in Nassau County, the venue is рroperly laid there.
If the defendants wish a change in venue, their remedy lies in a motion pursuant to CPLR 510. This is a matter within the discretion of the trial court (Yeomans v. Malen, 20 A D 2d 615; Palmer v. Chrysler Leasing Corp., 24 A D 2d 820) and is framed by CPLR 510, which provides:
“ § 510. Grounds for change of place of trial.
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 thаt 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. ’ ’
Sinсe the plaintiff lives in Nassau County, his designation for place of trial could not be improper under CPLR 510 (subd. 1) (Condon v. Schwenk, 10 A D 2d 822).
There has been neither a claim nor a showing that the defendants could not receive an impartial trial in Nassau County, as described in CPLR 510 (subd. 2). To the contrary, there has
Notwithstanding their articulated claim, defendants have failed to make the factual showing as to the convenience of material witnesses and the ends of justice necessary to сause invocation of CPLR 510 (subd. 3). The defendants have not indicated any names and addresses of the witnesses whose convenience would be served by the change of trial, nоr the substance of any testimony to be elicited from them. These showings must be made in order to obtain a change of the place of trial (Weinstein v. Kiamesha Concord, 28 A D 2d 925; Francis v. Jenks, 28 A D 2d 1007).
It would appear then that thе defendants do not actually base their claim for relief under CPLR 510 inasmuch as they have not made, or attempted to make, any showing of the existence of the grounds for the change delineated in that statute. Instead, they rely on a number of cases which they claim require that a trial for newspaper libel should be tried in the county in which the newspaper is published and circulates.
These cases essentially stem from the 1905 case of MacCormac v. Tobey (
Condon v. Schwenk (10 A D 2d 822, supra) involved a publication of a claimed libel arising out of a public hearing before
In Police Benevolent Assn. v. Post-Standard Co. (20 A D 2d 523) the Appellate Division reversed the denial of the Police Benevolent Association’s motion to change the venue of the proceeding from New York County to Onondaga County. The court hеld that the convenience of witnesses would be served if the trial were held in Onondaga County. It is clear enough that the distances involved between Syracuse and New York City are far more substantial than those between Staten Island and Nassau County.
In the opinion of this court, the plaintiff has brought his action in a proper place. In the further opinion of this court, the defendants have failed to bring themselves within any of the three saving subsections of CPLR 510 for changing the place of trial of the action. It is the CPLR which effectively еstablishes the venue rules (see Condon v. Schwenk, 10 A D 2d 822, supra).
Nor does the defendants’ appeal to the old line of cases stemming from MacCormac v. Tobey (
Even if one were to assume in arguendo that MacCormac (supra), in fact, meant what the defendants assert, this could not be a governing authority in this day and age, more than 65 years later. Today, Nassau and Richmond, while separate сounties in a political sense, are nevertheless part of the same metropolitan area. The Staten Island Sunday Advance, it is true, is particularized to Richmond County in most respects, but, the effect of its publication may reach throughout the metropolitan area. Once released in a metropolitan matrix with the depth and intensity of modern electriс communication, the waves of public harm cannot be limited to Richmond County. If Professor Marshall McLuhan (Understanding Media: The Extensions of Man, McGraw-Hill, Inc., 1964) is correct that cоmmunications today have turned, our earth into a global village, then surely Nassau County and Richmond County must be in the same neighborhood. The libel asserted links the plaintiff with a national сrime syndicate whose activities are under investigation by the Justice Department in Washington. The whole matter is indeed so broad in scope that the attempt to invoke suсh a limiting and narrow rule as urged by the defendants is to disregard modern reality.
Actually, the most localized aspects of the case are the selection of jurors, the use of a local court facility and a climate of opinion in the local area in which the case is tried. The facts are that the Staten Island Sunday Advance is widely circulated in Richmond County and it is а significant voice in that community. This court cannot, in its discretion, take an action, properly brought in the county of the plaintiff’s residence, and move it, on the defendants’ motion, to an area of possible prejudice.
For these reasons, the motion is denied.