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Plotkin Family Amagansett Trust v. Amagansett Building Materials, Inc.

Supreme Court, New York County

August 5, 2013

The Plotkin Family Amagansett Trust by its grantor, Richard L. Plotkin, and co-trustees David R. Plotkin, Geralyn B. Kerven and Matthew H, Plotkin, , Plaintiff,
v.
Amagansett Building Materials, Inc. and Keiver-Willard Lumber Corporation, Defendants. Index No. 102296/10 MOTION SEQ. NO. 003

UNPUBLISHED OPINION

PAUL WOOTEN JUSTICE.

The following papers, numbered 1 to 5 were read on this Motion by defendant to change venue to Suffolk County.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ... 1.2, 3.

Answering Affidavits — Exhibits (Memo) ............4.

Replying Affidavits (Reply Memo).........5.

Cross-Motion: Yes ---- No

Plotkin Family Amagansett Trust (Plotkin Trust or plaintiff) brings this action against defendants Amagansett Building Materials, Inc. (Amagansett) and Keiver-Willard Lumber Co. (Keiver-Willard) (collectively, defendants), in connection with plaintiffs purchase of allegedly defective Cypress d4s lumber (lumber) for use in the construction of a single-family home on plaintiff's property, located at 266 Marine Boulevard, Amagansett, Long Island, New York. Before the Court is a motion by Keiver-Willard for a change of venue, pursuant to CPLR §§ 510(1) and 511 (b) and (c), to transfer this action from New York County Supreme Court to Suffolk County Supreme Court on the grounds that the current venue is improper. Amagansett submits papers in support of Keiver's application. In opposition, plaintiff argues that New York County is the proper venue for the action under CPLR 503(b), as David R. Plotkin, co-trustee of Piotkin Trust, was a resident of New York County at the time of filing the complaint.

BACKGROUND

Plaintiff commenced the herein action by the filing of its Summons and Verified Complaint on February 22, 2010 in the New York Supreme Court, New York County. Plaintiffs Summons designates New York County as the place for trial and sets forth the basis for venue, pursuant to CPLR 503, is defendant's place of business (Keiver-Willard Affirmation in Support, exhibit A). Simultaneously with its answer, Keiver-Willard served a Demand for a Change of Venue from New York County to Suffolk County (see id., exhibit B; CPLR 511).

In response to defendant's Demand for a Change of Venue, plaintiff submitted the affidavit of Jonathan L. Lerner (Lerner Affidavit) on August 27, 2012, pursuant to CPLR 511(b), advising that venue in the County of New York is proper based on Plaintiff's residence (see Piotkin Affirmation, exhibit C, ¶ 2). Despite the Lerner Affidavit, plaintiff's office was served with a Notice of Motion to Change Venue of trial on September 10, 2012 (see Notice of Motion to Change Venue; see also Piotkin Affirmation, ¶ 7).

Currently, before this Court is a motion by Keiver-Willard to change venue in this action from New York County Supreme Court to Suffolk County Supreme Court. In support of its application, Keiver-Killard asserts that contrary to the summons, venue cannot be established pursuant to CPLR 503(c), as neither defendant resides in New York County, nor did they reside in New York County at the time plaintiff commenced this action. Specifically, Keiver-Willard points out that its principle place of business is in Newburyport, MA, and Amagansett's principle place of business is in Suffolk County. Moreover, Keiver-Willard asserts that plaintiff failed to timely provide a sufficient affidavit setting forth facts that New York County is proper in accordance with the CPLR (Keiver Willard Affirmation, ¶ ¶ 7, 14). In support of Keiver-Willard's application, Amagansett similarly asserts that venue in New York County is improper as neither defendant resides in New York County, which is undisputed by the plaintiff, and the complaint is devoid of any allegation that either defendant resided in New York County at the time of commencement of this action. Since Amagansett maintains its principle place of business in Suffolk County, and as such resides there pursuant to CPLR 503(c), Amagansett requests that this Court grant the herein motion.

In opposition, plaintiff avers that New York County is the proper venue for the action under CPLR 503(b), based on the residence of David R. Plotkin, co-trustee of Plotkin Trust. Plaintiff asserts that there is a discrepancy between the summons and the Complaint regarding the basis for venue in this action due to a clerical error in the summons.[1] The summons bases venue in New York County on defendant's place of business (CPLR 503[c]), instead of plaintiff's residence (CPLR 503[b]). Plaintiff claims venue is proper under CPLR 503(b) because Trustee David R. Plotkin, as set forth in the Complaint and Lemer Affidavit, was a resident of the County of New York at the time the complaint was filed (see Complaint, ¶ 1 and ¶ 5; Plotkins Affirmation, exhibit C). Furthermore, plaintiff proffers that the basis for ...


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