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Nova Casualty Co. v. RPE, LLC

Supreme Court of New York, Second Department

March 12, 2014

Nova Casualty Company, appellant,
v.
RPE, LLC, et al., defendants, Kong Shun Wang, respondent. (Action No. 1) Kong Shun Wang, respondent,
v.
Northfield Insurance Company, et al., defendants, Nova Casualty Company, appellant. (Action No. 2) Index Nos. 1733/11, 25373/11

Hurwitz & Fine, P.C., Buffalo, N.Y. (Jennifer A. Ehman of counsel), for appellant.

Berson & Budashewitz, LLP, New York, N.Y. (Jeffrey A. Berson of counsel), for respondent.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, SANDRA L. SGROI, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In two related actions for judgments declaring the rights and obligations of the parties under two policies of insurance, Nova Casualty Company, the plaintiff in Action No. 1 and a defendant in Action No. 2, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), entered December 3, 2012, as, upon reargument, vacated so much of a prior order of the same court dated July 10, 2012, as denied that branch of the motion of Kong Shun Wang, a defendant in Action No. 1 and the plaintiff in Action No. 2, which was to place the venue of the joint trial in Queens County and placed the venue of the joint trial in Erie County, and thereupon granted that branch of his motion which was to place the venue of the joint trial in Queens County.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and upon reargument, that portion of the order dated July 10, 2012, which denied that branch of the prior motion of Kong Shun Wang which was to place the venue of the joint trial in Queens County and placed the venue of the joint trial in Erie County is adhered to.

When a trial court orders consolidation or joint trials under CPLR 602(a), venue should generally be placed in the county where jurisdiction was invoked in the first action (see Brown v Cope Bestway Express, Inc., 99 A.D.3d 746, 748; Whiteman v Parsons Transp. Group of N.Y., Inc., 72 A.D.3d 677, 678; Schneider v Massi, 88 A.D.2d 619, 620). Special circumstances, however, may warrant the court, in its discretion, to place venue elsewhere (see Brown v Cope Bestway Express, Inc., 99 A.D.3d at 748).

Upon reargument, the Supreme Court should have adhered to its prior determination denying that branch of the motion of Kong Shun Wang which was to place the venue of the joint trial that had been ordered in those related actions in Queens County. The evidence presented in connection with Kong Shun Wang's motion, inter alia, to place venue in Queens County based on the convenience of material witnesses failed to satisfy his burden of proof under CPLR 510(3) or establish any other special circumstances (see Deutsch v Wegh, 269 A.D.2d 487, 487-488; O'Brien v Vassar Bros. Hosp., 207 A.D.2d 169, 172-173). Moreover, contrary to the contention of Kong Shun Wang, the convenience of the parties, their employees, and their experts is not relevant to a determination of a motion for a change of venue under CPLR 510(3) (see Leake v Constellation Brands, Inc., 112 A.D.3d 792; McManmon v York Hill Hous., Inc., 73 A.D.3d 1137, 1137; Markowitz v Makura, Inc., 29 A.D.3d 650). Accordingly, venue was properly placed in Erie County, where the first action was commenced.

MASTRO, J.P., HALL, AUSTIN, SGROI and DUFFY, JJ., concur.


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