| Moracho v Open Door Family Med. Ctr., Inc. |
| 2010 NY Slip Op 09382 [79 AD3d 581] |
| December 21, 2010 |
| Appellate Division, First Department |
| Milton Moracho, Appellant, v Open Door Family MedicalCenter, Inc., et al., Respondents, et al., Defendant. |
—[*1] Mauro Goldberg & Lilling, Great Neck (Matthew W. Naparty of counsel), for Open Door FamilyMedical Center, Inc., respondent. White, Fleischner & Fino, LLC, New York (Jason Steinberg of counsel), for Scullyrespondents.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered September 25,2009, which granted the motions of defendants Open Door Family Medical Center, Inc., ScullyConstruction Corp. and Scully Construction LLC to change venue to Westchester County, reversed,on the law, and the motions denied.
While there is no statutory time limit for a motion to change venue upon dismissal of a party whoseresidence provided the basis for venue, this Court has nonetheless required that such motions be madepromptly (Clase v Sidoti, 20 AD3d330 [2005]; Caplin v Ranhofer, 167 AD2d 155, 157-158 [1990]), that is, within areasonable time after the movant obtains knowledge of the facts supporting the request (Herrera v R. Conley Inc., 52 AD3d218 [2008]; Diaz v Clock Tower Assoc., 271 AD2d 290 [2000]). It also bears notingthat a party need not wait for notice of entry of the order dismissing the improper party before it movesfor a change of venue (see Emerick v Metropolitan Transp. Auth., 272 AD2d 150 [2000][venue motion made simultaneous with dismissal motion]).
Here, defendants may have been aware as early as February 28, 2008, 15 months before makingtheir motion, that Primary Care Development Corporation, the sole defendant on whose residencevenue in New York County was based, sought dismissal of the action against it.[FN*]Thereafter, Primary Care's September 2008 dismissal motion, made more than eight months prior tothe other defendants' venue applications, was unopposed. By order entered March 4, 2009, the courtdismissed Primary Care from the case. In its order, the court explicitly stated that[*2]"none of the remaining parties has any connection to New York Countyand that [the] case is therefor amenable to a motion to change venue."
Notwithstanding this pronouncement, the remaining defendants waited an additional three months,during which time they appeared in New York County and set a trial date, without giving any indicationof a venue problem. Two months after the trial date was set, the motion was made to change venue toWestchester. Given these circumstances, the grant of the motion was an improvident exercise ofdiscretion and an implicit endorsement of careless motion practice, in disregard of the importantprinciples of fair notice and judicial economy (see e.g. Herrera v R. Conley Inc., 52 AD3d 218 [2008]; Schwarz vErpf Estate, 232 AD2d 316 [1996]; see also Litt v Balmer, 146 AD2d 559 [1989] [thattrial date had been set was factor supporting finding that granting untimely venue change was abuse ofdiscretion]). Concur—Gonzalez, P.J., Richter, RomÁn, JJ.
Saxe and Nardelli JJ. dissent in a memorandum by Nardelli, J., as follows: The motion courtproperly exercised its authority and discretion when it granted defendants' motion to change venue toWestchester County, once the court dismissed the action as against the sole defendant whose residencewas the basis for setting venue here. The majority's reversal of that order, thereby requiring the trial tobe held in New York County, constitutes an undue interference with the motion court's discretion. Itherefore respectfully dissent.
When this action was commenced, one of the parties, Primary Care Development Corporation,resided in New York County; accordingly, no ground was presented to demand, or make a follow-upmotion for, a change of venue as of right under CPLR 511 (b). It was not until the IAS Court dismissedthe action as against Primary Care Development Corporation, by order entered March 4, 2009, thatthe remaining defendants had grounds to move for a change of venue to Westchester County underCPLR 510 (1).
Where the designated county is not a proper county, the CPLR requires that a party seeking achange of venue must serve a written demand either with or prior to service of the answer, and mustthen make a motion for that relief within 15 days after service of the demand (CPLR 511 [a], [b]).
As a rule, these statutory dictates are strictly applied. Normally, the failure to comply with either thedemand requirement or the 15-day time limit of CPLR 511 results in the denial of motions for change ofvenue (see Herrera v R. Conley Inc., 52AD3d 218 [2008]; Schwarz v Erpf Estate, 232 AD2d 316 [1996]). To the extent themotion court has some discretion when the movant's venue motion is made after the expiration of the15-day deadline, we have warned that such discretion is strictly limited (see Simon v Usher, 73 AD3d 415[2010]; Banks v New York State & Local Employees' Retirement Sys., 271 AD2d 252[2000]).
However, all the foregoing cases concerned circumstances where it was possible for the movant toabide by the procedural mandates of CPLR 511 (b), because the grounds for a change of venue as ofright existed at the outset. In circumstances such as these, where the designated county was proper[*3]when the action was commenced, and thereafter, the soledefendant whose residence made venue in that county proper was eliminated from the action, motionsfor a change of venue have repeatedly been granted, notwithstanding the absence of any prior demandin the form contemplated as a prerequisite to such a motion by CPLR 511 (see Clase v Sidoti, 20 AD3d 330, 331[2005]; Crew v St. Joseph's Med. Ctr.,19 AD3d 205, 206 [2005]; Halina Yin Fong Chow v Long Is. R.R., 202 AD2d 154[1994]; Gramazio v Borda, Wallace & Witty, 181 AD2d 428, 429 [1992]; Caplin vRanhofer, 167 AD2d 155, 157 [1990]).
The right of the remaining defendants to seek a change of venue at that juncture thus arose from anew circumstance, i.e., once the improper party was removed from the action, there was no longer anyjustification for setting venue in the county chosen by the plaintiff. CPLR 510 (1) permits a change ofvenue when "the county designated for that purpose is not a proper party." Since these circumstancesarose after service of the answer, the procedural and time restrictions contained in CPLR 511 thatwould otherwise normally limit the party's right to seek a change of venue under CPLR 510 (1) areinapplicable.
There is no authority to support the suggestion of plaintiff's counsel that we "posit" that the 15-daydeadline of CPLR 511 (b) begins to run on the date of the dismissal order in such circumstances.Similarly, the majority's assertion that the motion and cross-motion to change venue were not made"promptly" enough is not based on any controlling statutory time limits applicable to the circumstancespresented.
The one statutory time limit that may arguably be applicable here is the requirement of CPLR 511(a) that venue motions made on other grounds "shall be made within a reasonable time" ofcommencement of the action. In my view, defendants' motions were made within such a reasonabletime.
A party's time to act in response to an order is generally counted from the time that order is servedwith notice of entry thereon (see e.g. CPLR 5513 [a]). Defendants' time in which to move tochange venue did not begin to run until the dismissal order entered on March 4, 2009 was served onthem; yet, we have no information as to when it was served with notice of entry. Of course, the datewhen Primary Care made its first motion to dismiss on the grounds that it was not a proper party,February 28, 2008, has absolutely no relevance to this analysis; until the actual dismissal againstPrimary Care, defendants had no right to bring a CPLR 510 (1) venue motion.
The present motion violated no statutory time limits, and, as the majority recognizes, the motioncourt was entitled to exercise its discretion in connection with this motion. The grant of this motion,made less than three months of entry of the dismissal order, was well within that discretion, and shouldnot be disturbed by this Court.
Footnote *: * This motion was apparentlywithdrawn.