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Motion for a Change of Venue Made in the Wrong County–Statutory Procedure Explained

The Second Department determined that, given plaintiff’s response to the demand to change venue, defendants’ motion for a change of venue should have been made in the county where action was pending.  The court explained the applicable law:

“CPLR 511(b) provides a mechanism pursuant to which a defendant may serve a demand to change the place of a trial upon the ground of improper venue to a county the defendant specifies as being proper” … . If the plaintiff does not consent to the change, “the defendant may move to change the place of trial within fifteen days after service of the demand” (CPLR 511[b]). The defendant may notice such motion to be heard as if the action were pending in the county he or she specified, unless the plaintiff, within five days after service of the demand, serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by the plaintiff is proper (see id.).

Here, in response to the defendants’ demand to change venue, the plaintiff timely served an affidavit of her attorney containing factual averments that were prima facie sufficient to show that the county designated by her was proper (see CPLR 503[a]; 511[b]…). Accordingly, the defendants’ motion pursuant to CPLR 510(1) should have been made in the Supreme Court, Kings County, where the action was pending, and the Supreme Court, Nassau County, erred in granting the motion … .  King v CSC Holdings LLC, 2014 NY Slip OP 08813, 2nd Dept 12-17-14

 

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