Scott v. Otis Elevator Co. , 160 A.D.2d 519 ( 1990 )

—Order, Supreme Court, New York County (Irma Vidal Santella, J.), entered January 3, 1989, which denied defendant’s motion to change venue from New York County to Westchester County, unanimously reversed on the law, the facts and in the exercise of discretion, and the motion granted, without costs.

Plaintiff Charles Scott, a resident of Queens County, was allegedly injured as he exited an elevator located at One World Trade Center, Scott’s place of business. Plaintiffs subsequently commenced this negligence action in New York County. Defendant, whose principal place of business is located in Westchester County, sought to change venue from New York County to Westchester County. The trial court denied the motion, in what it called "the face of such a tentative nexus with the County of Westchester”.

We disagree. A review of the record discloses that defendant was entitled to a transfer to Westchester County under CPLR 510 (3). We note that plaintiffs forfeited the right to select the place of venue by choosing an improper venue in the first instance. (Kelson v Nedicks Stores, 104 AD2d 315, 316 [1st Dept 1984].)

We therefore conclude that the trial court improvidently exercised its discretion in denying the motion, and reverse accordingly. Concur—Sullivan, J. P., Carro, Milonas, Rosenberger and Ellerin, JJ.