CPLR 5: Venue Practice Flashcards
Overview of CPLR Article 5: Venue
Definition of Venue: In the context of CPLR 5, venue refers to the place of trial.
General Rule of Selection: Unless venue is changed by a court order upon motion or by the consent of the parties, the choice of venue designated by the plaintiff will prevail (CPLR 509).
CPLR 501 - Contractual Provisions
Controlling Agreement: If there was a written agreement or contract made before the lawsuit specifying the place where a trial would be held, that contract controls the venue.
Enforcement: Use of a contractual venue is enforced by a motion to change the place of trial.
CPLR 502 - Conflicting Venue
Joined Matters: If different cases or matters are joined for trial and have different venues, the court—upon motion—will fix one of the appropriate counties as the singular place where the matters will be tried.
CPLR 503 - Venue Based on Residence
General Residency Rule: Trial is generally held in the county where at least one of the parties resided at the time the cause of action arose.
Non-Residents: If neither party resided in New York State (NYS) at the time the action arose, the trial is held in the county designated by the plaintiff.
Fiduciary Residents: Individuals acting as an Executor, Administrator, Conservator, Trustee, Guardian, or Receiver are considered residents of two locations for venue purposes:
The county of their appointment.
The county of their actual residence.
Example: A resident of Nassau County appointed to represent someone in Queens County is considered a resident of both Nassau and Queens for venue.
Corporations: A corporation is deemed a resident of the county in which its principal office is located. This includes foreign corporations authorized to transact business in the State.
Unincorporated Entities and Small Businesses: For an unincorporated association, partnership, or individually owned business, the president or treasurer suing on behalf of the entity is considered a resident of both the county in which they reside and the county of the entity's principal office.
Assignee for Sum of Money: The residence of an assignee is considered the same as that of the assignor.
Example: A mortgage taken out from Astoria Federal Bank (principal office in Lake Success, Nassau County) is assigned to Washington Mutual (principal office in New Jersey). The residence venue remains in Nassau County.
Consumer Credit Transactions: The proper venue is the county where the defendant resides.
Student Debt: In actions to recover tuition, fees, room and board, educational benefit payments, student loans, or other charges owed to the State of New York and incurred by a student, the trial must be held in the defendant's residence if they live within NYS. If they do not live in NYS, venue is determined by other standard articles.
CPLR 504 - Actions Against Political Subdivisions
Against a County: Venue must be in that specific county.
Against a City (Excluding NYC): Venue is in the county where the city is located.
Against the City of New York: Venue is in the county within the city in which the cause of action arose.
Example: A car accident with a city sanitation truck in Queens results in venue in Queens County if NYC is the defendant. If the incident occurred outside NYC, venue would be in New York County.
CPLR 505 - Actions Against Public Authorities
General Rule: The proper place of trial is the county in which the authority's principal office is located.
Example: An action against the NYS Department of Vital Records must be brought in Albany County, where the main office is located.
New York City Transit Authority (NYCTA): Venue is at the county in New York City where the cause of action arose.
Example: An injury occurring on a subway in the Bronx requires the case be brought in Bronx County.
CPLR 506 - Commencement of Special Proceedings
General Location: Special proceedings are commenced in any county within the judicial district in which the matter is triable, unless otherwise specified.
Against a Supreme or County Court Judge: The proceeding must be commenced in the Appellate Division in the Department in which the original action was triable.
Example: A proceeding against a Nassau Supreme Court Justice would be held in the Second Department.
Against a Public Officer: Venue is in the county where the decision complained of took place or where the respondent\'s principal office is located.
Against the NYC Tax Appeals Tribunal: These must be commenced in the First Department.
Challenging Legislative Apportionment: Venue is in the judicial department where at least one petitioner resides.
CPLR 507 - Real Property Actions
Location Rule: Actions affecting title to, or the possession, use, or enjoyment of real property must be in the county where the real property is located.
Example: A dispute over a house and the land it sits on must be tried in the county encompassing that land.
CPLR 508 - Actions to Recover a Chattel
Location Rule: Venue for an action on a chattel may be the county in which the chattel is located or situated at the time of the commencement of the action.
Example: If a car is leased in Albany but hidden in Nassau, the action can be brought in either Albany or Nassau.
CPLR 510 - Grounds for Change of Place of Trial
No Sua Sponte Power: The court cannot change venue on its own motion under this section; it must be done via a motion by a party.
Statutory Grounds for Change:
The county designated by the plaintiff is not a proper county.
There is reason to believe an impartial trial cannot be had in the proper county.
The convenience of material witnesses and the ends of justice will be promoted by a change.
CPLR 511 - Procedure and Timelines for Change of Venue
Timing for Improper County: A motion for change of venue based on improper county must be served with the answer or before the answer is served.
Timing for Other Grounds: Change of venue based on other grounds (impartiality or witness convenience) must be made within a reasonable time after the action is commenced.
The Demand Procedure:
The defendant serves a written demand to change venue to the county they claim is proper.
The plaintiff has 5 days to serve a written consent to the change.
If the plaintiff does not consent, the defendant must move to change venue within 15 days of serving the demand.
Hearing Location: This motion is heard as if the action were pending in the defendant's preferred county, unless the plaintiff serves an affidavit in opposition within 5 days.
Stay of Proceedings: Proceedings are NOT stayed pending the motion unless the defendant shows due diligence.
Transfer of Files: If the plaintiff files a written consent with the county clerk or the court issues an order, the file is sent from the original county clerk to the new clerk. All fees already paid are credited to the new county.
CPLR 512 - Change of Place of Non-Jury Trial
Court Discretion: In a non-jury trial, the court can—on its own motion without a party request—send the case to any county within the judicial district in which the action was commenced.
Filing Requirements: Even if tried in a different county, any decision after trial is filed in the office of the county clerk in which the action was originally commenced.
Example: An action against Nassau County may be tried non-jury in Suffolk County, but the decision is filed with the Nassau County Clerk.
CPLR 513 - Misplacement of Venue in Consumer Credit Transactions
Clerk Rejection: The county clerk will refuse to accept a summons for filing in a consumer credit transaction if it is not brought in the proper county (the defendant's residence).
Notice: The clerk must indicate the date of rejection and the names of proper counties on the summons.
Service Rules: If a summons was rejected due to improper venue, service is deemed complete 10 days after filing the summons in the proper county.
Example: A credit card company attempts to sue a defendant in Nassau County, but the defendant lives in the Finger Lakes region (any of 14 upstate counties). The Nassau clerk will reject the filing.
Questions & Discussion
Question: Pursuant to CPLR 5, what does venue refer to?
Answer: Venue refers to the place of trial.
Question: Where is the residence of a foreign corporation for venue purposes?
Answer: It is deemed a resident of the county in which its principal office is located.
Question: Where is the proper venue for an action against the New York City Transit Authority?
Answer: In the specific county within New York City where the cause of action arose.
Question: Where does venue lie for actions affecting title to real property?
Answer: In the county where the property is located.
Question: For an action to recover a chattel, when must the chattel be situated in a county for it to be a proper venue?
Answer: At the time of the commencement of the action.
Question: If no motion or consent exists, whose choice of venue prevails?
Answer: The plaintiff's choice.
Question: What are the three grounds for a court to change the place of trial on motion?
Answer: 1) The designated county is not proper; 2) There is reason to believe a fair trial cannot be had; 3) The convenience of material witnesses and the ends of justice are promoted.
Question: Where may a non-jury trial be held?
Answer: In any county within the judicial district in which the action is triable, at the court's discretion.