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TO BE ENTITLED TO A CHANGE OF VENUE AS OF RIGHT, THE DEMAND MUST BE SERVED WITH THE ANSWER OR BEFORE THE ANSWER IS SERVED; TO BE ENTITLED TO A DISCRETIONAY CHANGE OF VENUE, THE MOTION MUST BE MADE PROMPTLY AFTER LEARNING OF THE GROUND FOR THE CHANGE; HERE THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue should not have been granted. The summons indicated plaintiff’s residence was the basis of venue in Kings County.  Defendants did not serve a demand to change venue with their answer or before the answer was served. The motion to change venue was based upon plaintiff’s deposition testimony that he lived at an address in Richmond County. The defendants were not entitled to a change of venue as of right (because the demand was not served with the answer or before the answer was served), and the defendants were not entitled to a discretionary change of venue because the motion to change venue was not made promptly after plaintiff’s deposition testimony:

A demand to change venue based upon the designation of an improper county must be “served with the answer or before the answer is served” (CPLR 511[a]). Here, since no demand to change venue was served with the answer or before the answer had been served, that branch of the defendants’ motion which was to change venue on the ground that the county designated was improper (see CPLR 510[1]) was untimely (see CPLR 511[a] …). Thus, the defendants were not entitled to change venue as of right, and their motion became one addressed to the Supreme Court’s discretion … .

Contrary to the defendants’ contention, the Supreme Court improvidently exercised its discretion in granting that branch of their motion which was to change venue, since the defendants failed to demonstrate that they moved promptly for a change of venue after the plaintiff testified at his deposition that he lived at an address in Richmond County … . Aguilar v Reback, 2024 NY Slip Op 04444, Second Dept 9-18-24

Practice Point: For a change of venue as of right the demand must be served with the answer or before the answer is served.

Practice Point: For a discretionary change of venue, the motion must be made promptly after learning of the ground for the change.

 

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