You are here: / / THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE...

THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT), ​

The Third Department, over a partial dissent, determined that the phrase “within five days” in a change of venue statute (CPLR 511) did not impose a five day waiting period:

Asserting that Ulster County was an improper venue for the proceeding, the Steeles served a timely written demand that the proceeding be tried in Oswego County (see CPLR 511 [b]). Four days later, the Steeles moved, in Ulster County, to change venue of the proceeding to Oswego County. The Aarons argue that the Steeles, by failing to wait five days after their demand to allow the Aarons an opportunity to provide a written consent to change venue, failed to comply with the statutory procedure and thereby were not entitled to a change of venue as of right. This argument is based on an interpretation that the language “unless within five days” places a hold on the defendant’s obligation to make a motion, during which time the defendant must simply wait for the plaintiff to respond to the demand (CPLR 511 [b]). We disagree with that interpretation of the statute.

The Aarons’ argument appears to focus exclusively on the phrase “unless within five days.” However, a plaintiff can choose not to respond to the demand, so the defendant may be sitting and waiting for nothing. In our view, the five-day window is a time limit on the plaintiff only, and the defendant is not required to refrain from doing anything during that period. Instead, the limits placed on a defendant under CPLR 511 (b) — other than the 15-day limit to move for change of venue — are contingent on whatever response the plaintiff may provide, rather than a five-day time period. While the five days are a limit on the plaintiff’s ability to respond to the demand, the defendant retains the ability to make the venue motion “unless . . . [the] plaintiff serves a written consent” agreeing to the venue selected by the defendant (CPLR 511 [b]). In other words, the important occurrence for the defendant is the plaintiff granting consent, not the passage of days. If the plaintiff consents to the demanded change in venue, the defendant may not move for such relief. In a situation where the defendant made a motion before the end of the plaintiff’s five-day response window and the plaintiff thereafter consented, the defendant would have to withdraw the motion (which would be unnecessary at that point anyway). Matter of Aaron v Steele, 2018 NY Slip Op 07393, Third Dept 11-1-18

CIVIL PROCEDURE (VENUE, THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))/CPLR 511 (VENUE, THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))/VENUE (THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))

You might also like
THE SOURCE CODE USED TO CONNECT DNA FROM THE MURDER SCENE TO THE DEFENDANT GENERATED A REPORT WHICH IMPLICATED THE DEFENDANT AND WAS THEREFORE TESTIMONIAL, HOWEVER, THE SOURCE CODE, AS A FORM OF ARTIFICIAL INTELLIGENCE, WAS NOT THE DECLARANT; THEREFORE THE FACT THAT DEFENDANT WAS NOT PROVIDED WITH THE SOURCE CODE DID NOT VIOLATE HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (THIRD DEPT).
Duplicitous Counts Dismissed Because Jury Could Not Connect Evidence with Specific Counts
PLAINTIFF’S “INVOLUNTARY RESIGNATION,” HOSTILE WORK ENVIRONMENT AND RETALIATION ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; TWO JUSTICE DISSENT (THIRD DEPT).
WHEN THE OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) ASSUMED CUSTODY OF CLAIMANT, IT OWED CLAIMANT A DUTY TO PROTECT HIM AGAINST FORESEEABLE HARM, INCLUDING SEXUAL ASSAULT; THIS CHILD VICTIMS ACT ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE STATE DID NOT OWE CLAIMANT A SPECIAL DUTY (THIRD DEPT). ​
People Failed to Prove Seizure of Cocaine at Police Station Was Not the Fruit of the Illegal Arrest—Attenuation Not Demonstrated
THE COURT OF CLAIMS IN THIS MEDICAL MALPRACTICE ACTION CREDITED BOTH EXPERTS, ONE OF WHOM OPINED DEFENDANT WAS AT RISK FOR FUTURE HEART PROBLEMS; THEREFORE THE AWARD OF ZERO DAMAGES FOR FUTURE PAIN AND SUFFERING WAS ERROR; AWARD INCREASED BY $10,000 (THIRD DEPT).
Determination Annulled and Expunged—Hearing Officer Did Not Take Any Steps to Confirm the Reliability of the Confidential Information Upon Which the Determination Was Based
1983 Action Against Department of Corrections Is Not Brought in the Court of Claims

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

STACKED SHEETROCK DID NOT PRESENT AN ELEVATION RELATED HAZARD AND DID NOT BLOCK... PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF...