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Criteria for a Change of Venue Not Met—Party Seeking Change Must First Demonstrate Existing Venue Is Improper

Reversing Supreme Court, the Second Department held that defendant’s motion to change venue should have been denied.  The court explained the analytical criteria:

“In the context of determining the proper venue of an action, a party may have more than one residence” … . Under CPLR 503(d), the county of an individual’s principal office is a proper venue for claims arising out of that business (see CPLR 503[d]…). Here, the plaintiff seeks to recover damages for medical malpractice allegedly committed by, among others, the defendant Jung Lack Lee in his capacity as a medical doctor. Accordingly, the county in which that defendant maintains his principal office is a proper venue in this case.

To prevail on a CPLR 510(1) motion to transfer venue, a defendant bears the burden of demonstrating that the plaintiff’s choice of venue was improper on the day the action was commenced, and that the defendant’s choice of venue is proper (see CPLR 511[b]…). Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper … . Here, the defendants failed to establish that Kings County was improper … . Accordingly, the Supreme Court should have denied the defendants’ motions to transfer venue and granted that branch of the plaintiff’s cross motion which was to retain venue in Kings County. Young Sun Chung v Kwah, 2014 NY Slip Op 07656, 2nd Dept 11-12-14

 

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