Venue in New York Personal Injury Actions CPLR Article 5: Where to Be and How to Get There

By Angela M. Evangelista, Esq.*

The rules relating to the venue of civil actions are found in Article 5 of the Civil Practice & Law Rules. This article will focus on venue in personal injury actions.

Personal injury actions commenced in New York State Supreme Court are classified as “transitory actions” under the CPLR. At least initially, such actions are governed by the venue selection rules delineated in CPLR § 503.

Venue is initially chosen by counsel for the plaintiff. When deciding in which county to initiate the action, the attorney makes the determination based upon the factual information available to him or her at the time of commencement of the action, as well as preference as to the location of the courthouse, convenience of the witnesses and the reputation of the jury pool.

CPLR § 503(a) provides: “[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it 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…”

The place of the accident has only recently been added as a basis for venue in New York. The Bill A6031/A8032  amending CPLR 503(a) was signed into law by Governor Cuomo on October 20, 2017, and became effective as to all actions commenced after October 23, 2017.

 A person can be deemed to be a resident in more than one county, and residence is a less stringent standard than domicile. It is defined as the location where a party stays for some time with bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. Schaefer v Schwartz, 641 N.Y.S. 2d 138 (App.Div. 2d Dept. 1996).  This is not true as to a corporation, because county of residence for a corporation is specifically defined by CPLR 503(c) and its interpreting case law. (see below)

In cases involving specifically designated parties, venue can be based on factors in addition to residence. An executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver shall be deemed a resident of the county of his or her appointment, as well as the county in which he or she actually resides. A railroad or other common carrier is also deemed a resident of the county where the cause of action arose.

An action brought against the City of New York is proper in the county within the City in which the cause of action arose. If it arose outside of the City, the action is proper in the County of New York.

As to a corporation, either a domestic corporation or a foreign corporation authorized to transact business in New York, it is deemed to be a resident of the county in which its principal office is located. (CPLR 503(c))  The residence of a domestic corporation, for venue purposes, is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county. Graziuso v. 2060 Hylan Blvd. Rest. Corp., 753 N.Y.S. 2d 103 (App. Div. 2d Dept. 2002). A partnership’s principal place of business is the county of residence of the partnership, in addition to the county in which the partner or individual owner suing or being sued actually resides. Physicians, in addition to their county of residence, can be deemed to be residents of the county where they have their principal office. Magrone v. Herzog, 757 N.Y.S. 2d 866 (App. Div. 2d Dept. 2001); Harrington v. Cramer, 493 N.Y.S. 2d 390 (Sup.Ct., N.Y.Co. 1985). Unlicensed foreign corporations are not residents of New York State for venue purposes; therefore, venue must be based upon the county of residence of some other party.

In addition to the residency provisions of the CPLR, venue can also be governed by a written agreement containing a choice of forum/venue provision. These provisions are often found in releases, waivers, leases and contracts.

It should be noted that a party’s county of residence is determined at the “time of commencement of the litigation,” not at the time of the underlying accident or when the cause of action arose. As indicated above, plaintiff’s counsel initially chooses venue based upon the information available to him or her at the time of initiation of the litigation. This information may or may not be accurate. For instance, if a plaintiff’s counsel in a motor vehicle accident bases their choice of venue on the address of the driver of the adverse vehicle as listed on the police accident report, it remains a possibility that such is not the address of the adverse driver/defendant by the date the litigation is commenced. For example, if a plaintiff’s counsel sees that the driver of the adverse vehicle is listed as a resident of Bronx County, he or she may jump at the chance to begin the litigation in that county. However, the determinative date is the date of the filing of the summons and complaint with the court. Counsel for plaintiff would have no way of knowing if the driver of the adverse vehicle, now the defendant, had moved to a different county in the time period between the accident and the start of the action. Accordingly, defense counsel should be aware of such a possibility. The current address of the defendant (county of residence) should be one of the first questions asked of the client during the initial interview and prior to the service of the answer.

When defense counsel determines that the venue initially chosen by plaintiff’s counsel is improper, he or she must act quickly. The time periods for seeking change of venue from an improper venue are very strict and should be in the forefront of defense counsel’s mind when preparing an answer. (If a defense practitioner gets to the point where they are questioning venue, they have presumably already confirmed that personal jurisdiction exists over the defendant as such is a separate evaluation based upon the activities of the defendant within the forum state.)

If a case has been initiated in an improper venue, a demand for change of venue must be served with or before the defendant’s answer. The plaintiff will then have 10 days to consent to the change or provide an affidavit as to why their initial choice of venue was proper. If the plaintiff does neither, the defendants have five days to serve a motion seeking a change of venue.

These time requirements are strictly enforced, and if they are not complied with, objection to venue can be deemed waived. (See, Collins v. Greenwood Mgt. Corp., 810 N.Y.S. 2d 17, 18 (App. Div. 1st Dept. 2006). Therefore, defense counsel should be familiar with the specific requirements and time provisions set forth in Article 5 of the CPLR. In the instance where a plaintiff’s misleading statements regarding residence causes the defendant’s untimely service of the demand, a delay in seeking a change of venue can be excused. Herrera v. R. Conley Inc., 860 N.Y.S. 2d 21 (App. Div. 1st Dept. 2008).

Defendants who serve their motion papers by mail are entitled to a five-day extension of the 15-day period after they have served their demand to change venue as prescribed in CPLR Rule 511(b), pursuant to CPLR § 2103(b). See, Simon v. Usher, 934 N.Y.S. 2d 362 (N.Y. 2011). This five-day extension is unlikely to be available for an e-filed case, but this has yet to be specifically addressed by the courts.

If plaintiff’s counsel does not comply with CPLR Rule 511 by serving an affidavit providing factual basis for why their initial choice of venue was proper, the defendant’s motion to change venue can be filed in either the county where the action is pending or the defendant’s proposed proper county. If an affidavit is provided, the motion must be filed in the county where the action is pending. King v. CSC Holdings, LLC, 1 N.Y.S. 3d 139 (App. Div. 2d Dept. 2014); HVT, Inc. v Safeco Ins. Co. of Am., 908 N.Y.S. 2d 222 (App. Div. 2d Dept. 2010).

In the scenario discussed above, where the defendant has moved from the county listed on the police accident report, an affidavit from the defendant as to his address at the time of the commencement of the action should be submitted in support of the motion to change venue. It is suggested that motion practice may even be avoided if such an affidavit is, along with the demand for a change of venue, served with the answer. Plaintiff’s counsel may be amenable to the change of venue after receiving proof that venue was improperly placed in the county based on the prior address of the defendant. In such an instance, venue can be changed by consent, pursuant to CPLR Rule 511, without the need for motion practice.

A court, upon motion, may also change the place of trial of an action where there is reason to believe that an impartial trial cannot be had in the proper county or the convenience of material witnesses and the ends of justice will be promoted by the change. Even if a case has been properly venued in the county of residence of a party, venue can be changed based upon the aforementioned reasons. O’Brien v. Vassa Bros. Hosp., 622 N.Y.S. 2d 284 (App. Div. 2d Dept1995). This is rare, but the CPLR provides for situations where circumstances may warrant such a transfer. The motion seeking change of venue based upon the convenience of the witnesses is not subject to the strict time restrictions of CPLR § 511. However, the statute provides that a motion for change of place of trial on any ground other than for improper venue is to be made “within a reasonable time after commencement of the action.” Although such a motion is permitted to be filed later in the litigation, it is always better practice to file the motion as early in the litigation as possible.

Article 5 of the CPLR contains the rules relating to venue, and practitioners should be familiar with the contents of this important article. It will help them know where to be and how to get there.

*Angela is a special counsel in our Rye Brooke, New York office. She can be reached at 914.977.7314 or amevangelista@mdwcg.com.

_{Defense Digest, Vol. 22, No. 3, September 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}

^{This article was updated on 7.3.18 to reflect the October 2017 amendments to CPLR 503.}