Opinion
July 28, 1971
Bedell Feinberg for plaintiff.
Joseph Jaspan, County Attorney, for County of Nassau Office of Administrative Offices and another, defendants.
This action for personal injuries and property damage allegedly arising out of an automobile accident in Queens County was commenced against the County of Nassau and other defendants in Supreme Court, Kings County. The defendant county now moves to change the venue to Nassau County, and the plaintiffs oppose the motion on the ground that the convenience of witnesses would be served by retaining venue in Kings County.
The place of trial of all actions against a county is specified in the CPLR as any appropriate court within that county. (CPLR 504.) The First and Third Departments have ruled that the right to a transfer of venue when plaintiffs have not complied with CPLR 504 is absolute ( Levine v. City of Port Jervis, 15 Misc.2d 574, affd. 11 A.D.2d 1016; Merrill v. City of New York, 16 A.D.2d 1004; Bagan v. Fritz, 274 App. Div. 1082) and the Second Department has indicated that it would reach the same result. ( Rubenstein v. Silbert, 279 App. Div. 878.)
The venue may later be transferred out of a proper county (see CPLR 510, subd. 3; Levine v. City of Port Jervis, supra; Weber v. Lacey, 281 App. Div. 290), but such a procedure requires a motion by plaintiffs for that relief. Although plaintiffs have opposed this motion, they have not asserted any cross motion for retention of venue in Kings County on appropriate statutory grounds. ( Dickman v. Stummer, 20 A.D.2d 611;
Merrill v. City of New York, supra; Levine v. City of Port Jervis, supra; Dodds v. Whitcomb, 45 N.Y.S.2d 441.) An affidavit in opposition to the motion is not sufficient to constitute such a cross motion. ( Behrman v. Pioneer Pearl Button Co., 190 App. Div. 843.)
In any event, upon the papers submitted in opposition to this motion, the court could not find that the parties or witnesses, all of whom reside in the City of New York, would be so inconvenienced by a trial in this county as to defeat the venue rights of the county under CPLR 504.
Accordingly, the venue of this action will be transferred from Kings County to Nassau County.