A recent decision dealt with an interesting tactical issue and the consequences for filing in the wrong venue.  In Marinelli v Wimmer, plaintiff filed a personal injury case in Kings County Supreme Court (which is Brooklyn – a plaintiff friendly venue).  However, the defendants contended venue was not proper because plaintiff no longer lived at the address as pleaded in the complaint and moved to change venue to Suffolk County.

In response, the plaintiff filed a cross-motion for leave to discontinue the case without prejudice if the Court granted the motion to change venue.  Plaintiff intended to re-file the action in Kings County, and plead a different Brooklyn address.  The Kings County Supreme Court issued a decision changing venue to Suffolk County, and denying the plaintiff’s cross-motion to discontinue.

The plaintiff filed an appeal to the Second Department Appellate Division, admitting that venue was not proper in Kings County, but arguing that his cross-motion to discontinue should have been granted by the trial court.  The appellate decision held that an application to discontinue should generally be granted; however a plaintiff is not entitled to this relief as right, but with the sound discretion of the court. A court should not grant a motion to discontinue when “the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results.”

Applying these principles, the Court found that the Kings County Supreme Court providently exercised its discretion in denying the plaintiff’s request for leave to discontinue, since the request was improperly sought to avoid the consequences of the Court’s decision to change venue to Suffolk County.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.