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IN THIS FRAUD ACTION, PLAINTIFF COULD NOT DEMONSTRATE THE FRAUDULENT STATEMENTS WERE MADE IN ERIE COUNTY; THEREFORE THE PLACE OF DEFENDANT’S RESIDENCE, NEW YORK COUNTY, WAS PROPERLY DESIGNATED THE VENUE FOR THE ACTION (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined New York County was the proper venue for this fraud action because plaintiff did not demonstrate the fraudulent statements allegedly made by defendant were made in Erie County, as opposed to Cleveland, Ohio. Absent proof the statements were made in Erie County, the fact that defendant resides in New York County controlled:

… New York County is indisputably a proper county based upon defendant’s residence therein (see CPLR 503 [a]). Because none of the parties resides in Erie County, the sole question before the trial court was whether “a substantial part of the events or omissions giving rise to the claim occurred” in Erie County … . …

The legislature only recently added a provision to CPLR 503 (a) that allows venue based on the location of the events underlying the claim … , but the Federal Rules of Civil Procedure contain an identical provision (see 28 USC § 1391 [b] [2]), doubtless the model for the amended language in CPLR 503 (a). In determining whether venue is proper under that provision, the Second Circuit applies a two-part inquiry. First, the court must “identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to those claims” … . Second, the court must “determine whether a substantial part of those acts or omissions occurred in the district where suit was filed, that is, whether ‘significant events or omissions material to [those] claim[s] . . . have occurred in the district in question’ ” … . In a fraud claim, the act giving rise to the claim is the alleged making of the fraudulent statement … . Consistent with that, federal courts have found venue to be proper based upon “where the defendant allegedly made the fraudulent statements” … . …

Plaintiff … failed to show that material, fraudulent statements were made in Erie County … . Harvard Steel Sales, LLC v Bain, 2020 NY Slip Op 05635, Fourth Dept 10-9-20

 

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