Opinion
November 9, 1982
Appeal from the Supreme Court, Herkimer County, Davis, J.
Present — Simons, J.P., Callahan, Doerr, Boomer and Moule, JJ.
Order unanimously reversed, with costs, and motion granted. Memorandum: This cause of action for alleged misappropriation of corporate funds, embezzlement, conversion and breach of contract clearly arose in Monroe County. The action was commenced by plaintiff, in his individual name as sole stockholder of the corporation, in the county of his residence, Herkimer County. Defendant moved for a change of venue which Special Term denied. This was an abuse of discretion. In their motion seeking a change of venue, defendants set forth the names and addresses of some 32 witnesses who would testify at the trial, with a brief summary of what this testimony would entail. These witnesses reside primarily in or very near Monroe County. While the testimony of many of these witnesses would appear to be cumulative, this is not true of all of defendants' witnesses. By contrast, the record indicates that plaintiff's evidence will come from his own testimony and his business records, which he claims are voluminous and located in Herkimer County. The CPLR provides that the court may change the place of trial when "the convenience of material witnesses and the ends of justice will be promoted by the change" (CPLR 510, subd 3). In resolving venue disputes some general principles have evolved. Cases should ordinarily be tried where the cause of action arose ( Kucich v Leibowitz, 68 A.D.2d 1002, citing Slavin v Whispell, 5 A.D.2d 296, 297-298; Chung v Kivell, 57 A.D.2d 790), in the less congested forum ( Kucich v Leibowitz, supra; Fisher v Rothrum, 9 A.D.2d 734), and where a majority of material witnesses reside ( Seabrook v Good Samaritan Hosp., 58 A.D.2d 538; McComb v Hilton Hgts. Apts., 43 A.D.2d 972), excluding witnesses who are parties, relatives and employees of parties, or experts ( Palmer v Chrysler Leasing Corp., 24 A.D.2d 820; Gerber v B.C.R. Hotel Corp., 10 A.D.2d 956). Not infrequently, these guidelines will point to different forums. In such a case, the overriding consideration is usually the location of the principal nonparty witnesses, particularly if this location is where the cause of action arose ( Wilson v Sponable, 77 A.D.2d 799; Kucich v Leibowitz, supra; Seabrook v Good Samaritan Hosp., supra). Plaintiff has failed to demonstrate any consideration which would favor Herkimer County as the proper place of venue in this action.