Motion to Transfer Venue in New York

What Is a Motion to Transfer Venue?

Background

The court, upon motion, may change the place of trial of an action where the county designated for that purpose is not a proper county. (Civ. Pract. Law & Rules, § 510.)

How to Structure the Motion

Civil Practice Law and Rules provide the basis for choosing and changing a venue. (Civ. Pract. Law & Rules, § 503; Civ. Pract. Law & Rules, § 510.) The venue is proper in either

the county in which one of the parties resides when the action was commenced;
the county in which a substantial part of the events or omissions giving rise to the claim occurred; or
if none of the parties then resided in the state, in any county designated by the plaintiff.

(Civ. Pract. Law & Rules, § 503(a).)

The courts have consistently held that the venue should be in the county where the cause of action arose and a preponderance of material non-party witnesses are located. (Slavin v. Whispell, 5 A.D.2d 296, 171 N.Y.S.2d 892 [1st Dept. 1958]; McGuire v. General Elec. Co., 117 A.D.2d 523, 498 N.Y.S.2d 137 [1st Dept. 1986].) “A defendant’s burden on a motion to change venue is limited to establishing that the designated county is improper.” (Garced v. Clinton Arms Assoc., 58 A.D.3d 506, 509 [1st Dept. 2009].) A venue is appropriate in the county of residence of one of the parties; the county of residence is measured as of the date of commencement of the action. (Civ. Pract. Law & Rules, § 503(a); Addo v. Melnick, 61 A.D.3d 453 [1st Dept. 2009].)

Similarly, the movant also bears the burden of demonstrating that the convenience of material witnesses would be better served by the change.” (Cardona v. Aggressive Heating, Inc., 180 A.D.2d 572, 572 [1st Dept. 1992].) The showing must include:

the identity of the proposed witness;
the manner in which they will be inconvenienced by a trial in the county in which the action was commenced;
that the witnesses have been contacted and are available and willing to testify for the movant;
the nature of the anticipated testimony; and
the manner in which the anticipated testimony is material to the issues raised in the case.

(Id.)

“In the absence of such a showing, a change of venue… which is addressed to the sound discretion of the court, should not be granted.” (Countrywide Ins. Co. v. Quinn, 268 A.D.2d 381, 382 [1st Dept. 2000].)

Response

A defendant seeking to challenge the chosen venue on grounds that said venue is improper must interpose a demand to change venue with, or prior to, service of an answer. (Jason v. Dumel, 3 Misc. 3d 1101(a) [Sup. Ct. Kings Cty. 2004].) Thereafter, a plaintiff must either agree to change the venue or interpose an affidavit indicating why the venue chosen is proper and why the proposed venue is improper. (Id.) An action brought in the wrong county requires a venue change as a matter of right. (Id.) A plaintiff’s failure to respond to a defendant’s demand to change venue supports a transfer of the case to the venue selected by the defendant. (Lynch v. Cyprus Sah & Dorr Co., Inc., 272 A.D.2d 260 [1st Dept. 2000].)

The Court’s Decision

Courts are free to consider any relevant factors to determine whether a change in venue promotes the ends of justice. (Holmes v. Davis, 7 Misc. 3d 1006(A) [N.Y. Sup. Ct. 2005].) The court should not presume that the convenience of the witnesses would be served by a trial in the venue where the cause of action accrued. (O’Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 174 [2nd Dept. 1995].) Nor is there any “presumption of inconvenience simply because the witness lives in a county other than that in which the courthouse is located.” (Roopnarine v. Zelena, 791 N.Y.S.2d 873, 873 [1st Dept. 2004].)

The convenience of local government employees, and in particular the investigating police officers, is of “paramount importance” and afforded greater weight than that of other non-party witnesses. (Kennedy v. CF Galleria at White Plains, 2 A.D.3d 222, 223, 769 N.Y.S.2d 526, 527 [1st Dept. 2003].) By contrast, the place of residence of a corporate defendant is afforded very little weight. (Aguanno v. Kostopolous, 2 A.D.3d 177, 177 [1st Dept. 2003].)

A “written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial,” subject only to a change of venue on the ground that an impartial trial could not be had in the venue designated by the agreement.” (Fear & Fear, Inc. v. N.I.I. Brokerage, LLC, 50 A.D.3d 185, 187 [4th Dept. 2008].) “It is well-accepted policy that forum selection clauses are prima facie valid. In order to set aside such a clause, a party must show that enforcement would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a trial in the contractual forum would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court.” (Id. at 186.)

“In exercising its discretion, the court should certainly take into account whether the request for a change of venue has been made with due diligence.” (Campos v. NYCH&HC, 163 A.D.2d 49, 51 [1st Dept. 1990].)

Timeline

A party seeking a transfer of venue based on the convenience of material witnesses is required to make the motion within a reasonable time after commencement of the action. (Civ. Pract. Law & Rules, § 511(a).) In determining whether a movant has acted with “reasonable diligence” courts consider not only the amount of time elapsed since the movant had knowledge of the facts relevant to the transfer request, but also the nature and extent of movant’s participation in the litigation prior to seeking a transfer. (Micale v. Jones, 96 A.D.2d 791, 791 [1st Dept. 1983].)

Documents for Motion to Transfer Venue in New York

Sort By

Barclays Bank Delaware v. Matt Wrobel document preview

MOTION PAPERS (Motion #1) - (w/updated return date of 5/3/24 ON SUBMISSION)

1 page

INDEX NO. 2024-5110 NYSCEF DOCRiIMBlo:.IRA038864 RECEIVED NYSCEF: 04/09/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CHEMUNG Barclays Bank Delaware Index No.: 2024-5110 Plaintiff, NOTICE OF MOTION TO EXTEND THE VS. TIME…