Rochester, New York
CHANGE OF VENUE (CIVIL)
CONVENIENCE OF MATERIAL WITNESSES
The motion for a change of venue must demonstrate that the convenience of material witnesses will be better served by the change. In doing so, the moving party must set forth: (1) the names, addresses, and occupations of material witnesses, (2) the facts to which these witnesses will testify at trial, (3) a showing that those witnesses are willing to testify, and (4) a showing that those witnesses would be inconvenienced if the venue of the action was not changed.
Party Moving for a Change of Venue Must Demonstrate the Change Will Better Serve the Convenience of Material Witnesses
In affirming the denial of a motion for a change of venue, the Second Department explained the criteria:
"The party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses would be better served by the change" ... . In doing so, the moving party must set forth: (1) the names, addresses, and occupations of material witnesses, (2) the facts to which these witnesses will testify at trial, (3) a showing that those witnesses are willing to testify, and (4) a showing that those witnesses would be inconvenienced if the venue of the action was not changed ... . MI v Trinity-Pawling School, 2015 NY Slip Op 00852, 2nd Dept 2-4-15
COURT'S DISCRETION TRUMPS MANDATORY STATUTORY LANGUAGE
Despite mandatory language in the controlling statute designating the venue for an action, a court has the discretion to grant a motion for a change of venue based upon the convenience of material witnesses and the absence of prejudice to the opposing party.
Despite Mandatory Language In the Statute Requiring that an Action Against a School District Be Brought in the County Where the School District Is Located, the Court Has the Discretion to Grant a Motion for a Change of Venue Based Upon the Convenience of Material Witnesses and the Absence of Prejudice to the School District
The Second Department determined that, despite the mandatory language of CPLR 504, a change of venue based upon the convenience of witness was appropriate in an action against a school district:
CPLR 504 provides, in relevant part, that "the place of trial of all actions against . . . school districts . . . shall be . . . in the county in which such . . . school district . . . is situated" (CPLR 504...). "The purpose of CPLR 504, which applies not just to school districts but also to counties, cities, towns, and villages, is to protect municipal entities and their employees from the inconvenience of an alternative venue ... . "Nevertheless, and despite the seemingly unforgiving language of the statute, venue may be changed to a non-mandated county upon a showing of special circumstances" ... . The decision of whether to grant a change of venue is committed to the providently exercised discretion of the trial court ... .
Here, the plaintiff established that the convenience of material witnesses and the ends of justice outweigh the asserted governmental inconvenience ... . The plaintiff produced the affirmations from his treating physicians, both of whom maintain a surgical practice in Kings County, and an affidavit from an eyewitness to the accident, who resides in Kings County ... . Each prospective witness disclosed the facts underlying his proposed testimony and asserted that he will be inconvenienced if the trial were conducted in Suffolk County rather than in Kings County ... . The defendant, however, did not assert that any of its employees witnessed the accident ... . Furthermore, the defendant failed to establish that any of its trial witnesses would be inconvenienced by traveling to Kings County. Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to Kings County. Xhika v Rocky Point Union Free School Dist, 2015 NY Slip OP 00874,d 2nd Dept 2-4-15
WHERE DEMAND AND MOTION FOR A CHANGE OF VENUE ARE LATE, THE MOVING PARTY IS NO LONGER ENTITLED TO A CHANGE AS OF RIGHT--GRANTING THE MOTION BECOMES A MATTER OF THE COURT'S DISCRETION (MOTION PROPERLY DENIED HERE)
"Since the appellants failed to serve a timely demand for a change of venue and failed to make a motion for that relief within the statutory time period, they were not entitled to a change of venue as of right, and their motion became one addressed to the court's discretion."
Court Has the Discretion to Deny a Motion to Change Venue Where the Statutory Time-Limits for the Demand and Motion Are Not Met---Discretion Not Abused Here
The Second Department explained the rules associated with making a demand and motion for a change of venue. If the demand and motion are not made within the statutory time-limits, granting the motion is a matter of discretion. Denial of the motion was not an abuse of discretion here:
A demand to change venue based on the designation of an improper county (see CPLR 510) "shall be served with the answer or before the answer is served" (CPLR 511[a]...). "Thereafter the defendant may move to change the place of trial within  days after service of the demand" (CPLR 511[b]). Since the appellants failed to serve a timely demand for a change of venue and failed to make a motion for that relief within the statutory time period, they were not entitled to a change of venue as of right, and their motion became one addressed to the court's discretion ... . Giddings v Century 21 Dept Stores LLC, 2015 NY Slip Op 00493, 2nd Dept 1-21-15