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ALAN FOX ET AL. v. WALTER MONTENEGRO ET AL. (10/01/69)

CIVIL COURT OF THE CITY OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY 1969.NY.42955 <http://www.versuslaw.com>; 304 N.Y.S.2d 624; 61 Misc. 2d 1 October 1, 1969 ALAN FOX ET AL., PLAINTIFFS,v.WALTER MONTENEGRO ET AL., DEFENDANTS Schoen & Spokek for plaintiffs. Tropp & Steinbock for defendants. William T. O'Connell, J. Author: O'connell


William T. O'Connell, J.

Author: O'connell

 Motions numbered 170 and 146 are hereby consolidated for decision.

This appears to be a case of first impression. Neither counsel has been of any assistance to the court and they have not submitted any memoranda of law sustaining their respective contentions.

The action herein was commenced in the Kings County division of this court, and bears Index No. 59165/1964 which is the Kings County index number assigned to this case.

The facts herein are not really at issue.

The action was brought to recover damages allegedly sustained by the plaintiffs on the 21st day of June, 1964 as the result of an automobile accident. Thereafter issue was joined and the case noticed for trial in the Kings County division of this court and was assigned calendar No. J 16745.

On May 13, 1968, the case was dismissed from the trial calendar because of the nonappearance of the plaintiffs.

Thereafter, the plaintiffs' attorney moved for an order restoring the case to the calendar. The plaintiffs' attorney claims that due to a clerical error the venue of the caption of the case was placed in New York County. There is no question that the case was instituted in Kings County; that the index number was a Kings County number and that there had been no previous papers filed in this case in New York County.

The defendants opposed the motion and in their papers continued listing New York County as the place of venue in the caption of the case. The defendants' attorneys now claim that they were unaware that the motion was made returnable in the wrong county.

Upon the return date of the motion, neither party having advised the court that the motion was made returnable in the wrong county, the court accepted the motion as a contested motion and thereafter decided the motion upon the merits.

The court decided and found that the plaintiffs' default was neither willful nor contumacious and that no prejudice other than inconvenience had been established on the part of defendants. The court granted the motion to restore the case to the calendar under certain conditions including the payment of $25 costs by the plaintiffs to the defendants. The defendants have refused to accept the tender of the payment of the motion costs so as not to prejudice a prospective appeal.

The defendants move to have the order restoring the case to the calendar vacated with leave to the plaintiffs to move for similar relief in the Kings County division of this court, while the plaintiffs move for an order amending the venue in the caption of the order restoring the case to read "County of Kings" instead of and in place of "County of New York," and for such other and further relief as to this court may seem just and proper.

In substance, the defendants claim that a Judge sitting in New York County did not have jurisdiction to act upon the motion, while the plaintiffs claim that this court did have jurisdiction and had it been advised of the error in the venue, the motion could have been transferred to the Kings County division of this court.

The defendants herein are confusing the question of "venue" with that of "jurisdiction." If the defendants had any objection to the motion having been brought in New York County, they should have made that objection known at the time when the motion was made. "Venue" relates to the place where a trial or hearing is scheduled, while ...


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