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JOSEPH RAE v. ADVANCE PUBLICATIONS (09/12/69)
SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY
1969.NY.42835 <http://www.versuslaw.com>; 303 N.Y.S.2d 911; 60 Misc. 2d 792
September 12, 1969
JOSEPH RAE, PLAINTIFF,v.ADVANCE PUBLICATIONS, INC., ET AL., DEFENDANTS
Sabin, Berman & Blau for Advance Publications, Inc., and others, defendants.
Walzer & Levy for plaintiff.
Bertram Harnett, J.
On April 20, 1969, the defendant, Advance Publishers, Inc., published an article in its newspaper, the Staten Island Sunday Advance, which the plaintiff, Joseph Rae, claims libelled him. Mr. Rae, a Nassau County resident, brought suit for libel in the Nassau County Supreme Court.
Defendants now move to change the place of trial from Nassau County to Richmond County. The moving affirmation urges as the grounds for changing the place of trial that the Staten Island Sunday Advance is published and circulated in Richmond County, and that the convenience of material witnesses and the ends of justice will be promoted by the change.
The motion is denied and the venue retained in Nassau County.
The plaintiff lives in Nassau County. Under CPLR 503 (subd. [a]), the plaintiff is legally entitled to bring suit in the county in which he lives. Since he lives in Nassau County, the venue is properly laid there.
If the defendants wish a change in venue, their remedy lies in a motion pursuant to CPLR 510. This is a matter within the discretion of the trial court (Yeomans v. Malen, 20 A.D.2d 615; Palmer v. Chrysler Leasing Corp., 24 A.D.2d 820) and is framed by CPLR 510, which provides:
"§ 510. Grounds for change of place of trial.
The court, upon motion, may change the place of trial of an action where:
1. the county designated for that purpose is not a proper county; or
2. there is reason to believe that an impartial trial cannot be had in the proper county; or
3. the convenience of material witnesses and the ends of justice will be promoted by the change."
Since the plaintiff lives in Nassau County, his designation for place of trial could not be improper under CPLR 510 (subd. 1) (Condon v. Schwenk, 10 A.D.2d 822).
There has been neither a claim nor a showing that the defendants could not receive an impartial trial in Nassau County, as described in CPLR 510 (subd. 2). To the contrary, there has been a reasonable suggestion by the plaintiff that there would be difficulty in obtaining an impartial trial in Richmond County where the defendant newspaper has general circulation and enjoys considerable local prominence (cf. Clausi v. Hudson Cement Co., 26 A.D.2d 872).
Notwithstanding their articulated claim, defendants have failed to make the factual showing as to the convenience of material witnesses and the ends of justice necessary to cause invocation of CPLR 510 (subd. 3). The defendants have not indicated any names and addresses of the witnesses whose convenience would be served by the change of trial, nor the substance of any testimony to be elicited from them. These showings must be made in order to ...