Co-Defendant Granted MSJ: Don’t Despair, Change Venue! (NY)

Venue can play a substantial role in any case. This is particularly so in New York, where there is not only a substantial difference in jury-make-up across the jurisdictions, but differences in the law amongst the four Appellate Division Departments.

Under CPLR 503, venue is proper in the county in which one of the parties resides when the action was commenced. For corporations, this would be their principal place of business. A wise plaintiff, facing an unfriendly venue, may sue a party with tenuous liability just to obtain a more favorable venue. Although this may be proper at the outset, once that defendant is dismissed from the case, there may be no other grounds to support venue in that county. Such was the case in Whelton v. Dayton Beach Park No. Corp.

In Whelton, the Supreme Court granted one of the defendant’s motions for summary judgment. That defendant’s principal place of business was the only basis for plaintiff’s suit in Kings County. So once that defendant was dismissed, the remaining defendants moved to change venue to Nassau County, a far more favorable defense jurisdiction. The Supreme Court denied the motion, but the Second Department reversed. It held that since the only party in the action whose presence supported venue in Kings County, the Supreme Court should have transferred the case to Nassau County.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at