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WHEN A PARTY BRINGS A MOTION TO CHANGE VENUE IN THE COUNTY TO WHICH THE PARTY WANTS VENUE CHANGED, AS OPPOSED TO THE COUNTY WHERE THE ACTION WAS STARTED, THE PARTY MUST USE THE SPECIAL PROCEDURE IN CPLR 511 (A) AND (B), WHICH REQUIRES MAKING A DEMAND ON THE OTHER PARTY BEFORE BRINGING A MOTION; HERE THE SPECIAL PROCEDURE WAS NOT USED, THE MOTION TO CHANGE VENUE WAS MADE IN THE “WRONG COUNTY” AND SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant nursing home’s motion to change venue should have been denied. Unless a party follows the special procedure in CPLR 511(a) and (b), which requires making a demand on the other party before bringing a motion, a motion to change venue must be brought in the county where the action was started. Here the defendant did not use the special procedure and brought the motion to change venue in the county where defendant sought to move the proceedings. That was the wrong county for the motion:

This Court has stated that “[w]here . . . a motion to change venue . . . is made in the ‘wrong county’ and timely objection is raised to the improper venue of the motion itself, Special Term should deny the motion” … . Contrary to the defendant’s contention, neither CPLR 501 nor CPLR 511(b) provided a basis for it to notice the motion in Nassau County. Allen v Morningside Acquisition I, LLC, 2022 NY Slip Op 03219, Second Dept 5-18-22

Practice Point: Here the party made a motion to change venue in the county to which the party wanted venue changed. That was deemed the “wrong county” and the motion was dismissed because the party did not first use the special procedure in CPLR 511 (a) an (b) which requires making a demand on the other party before bringing the motion.

 

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