As we wrote in our October 2017 post, a new amendment to CPLR 503, changed the basis of venue determinations to include, not only where the parties reside, but added “the county in which a substantial part of the events or omissions giving rise to the claim occurred”. The justification for the amendment was to give the courts and jurors of communities with the most interest in setting community standards the ability to decide these cases and controversies, and case law is beginning to develop in this area. Contemplated as an advancement in forum shopping for the plaintiffs’ bar, the statute has favorable implications for the defense bar as well.

In Taylor v. Montreign Operating Co., Inc. , a well-known New York City plaintiff’s firm placed venue of a personal injury action in New York County.  Defendant moved to change venue to Sullivan County, a rural upstate county, where the accident occurred. The lower court denied defendant’s motion and the Appellate Division, First Department reversed, and changed venue to Sullivan County.  In finding that defendant demonstrated that the convenience of nonparty witnesses would be better served by the venue change, the First Department ruled that the trial court improvidently exercised its discretion in denying the motion.

Other than one defendant’s registered principal place of business, and one of plaintiff’s physicians maintaining an office in the county, the case had no contact with New York County. Defendants sought to move the case to the county where the accident occurred.  Importantly, Defendants submitted the affidavits of four first responders and plaintiff’s coworker, all of whom averred that they would testify as witnesses, but would be inconvenienced by traveling to New York County.

The court brushed off plaintiff’s arguments that the affidavits were not sufficiently detailed and accepted that the non-party witnesses were material and necessary. Moreover, plaintiff’s argument that there was a likelihood of summary judgment on liability under the Labor Law was deemed irrelevant.

Savvy plaintiffs will always look to place the controversy in the most plaintiff-friendly venue. Yet, defense counsel could use the application of the amendment to CPLR 503 to nullify that perceived advantage.  With any new lawsuit, careful consideration must be given to the location of the accident and the convenience of witnesses in that venue.   Results from a detailed and early investigation into witnesses could bolster support for a venue change to the proper community and perhaps result in a more balanced jury pool.

Thanks to Vincent Terrasi for his contribution for this post.  Please write to Tony Pinto for more information.