Ruiz v. City of New York , 599 N.Y.S.2d 822 ( 1993 )

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered October 29, 1992, which granted the motion of defendants Westchester County and Liberty Lines Transit, Inc. to change venue of this action from Bronx County to Westchester County, thereby denying plaintiffs cross-motion to retain venue in Bronx County, affirmed, without costs.

In this action brought by a passenger allegedly injured in a two-car collision in Bronx County, the motion court properly granted the venue change to Westchester County in accordance with CPLR 504, which provides, inter alia, that all actions brought against a county shall be tried in that county. While the CPLR speaks in mandatory terms, exceptions have been judicially recognized in the face of "compelling countervailing circumstances” (Rogers v U-Haul Co., 161 AD2d 214, 215). Plaintiff failed to meet that burden here. Although she provided a general list of witnesses whose testimony she expects at trial, she provided no specific information concerning their alleged testimony; indeed, her papers did not even state whether these supposed witnesses had even been contacted. Such a showing is insufficient, as a matter of law, to overcome a statutory presumption regarding a change of venue (see, Culhane v Jensen, 179 AD2d 582; Weisemann v Davison, 162 AD2d 448; Greene v Hillcrest Gen. Hosp., 130 AD2d 621).

Our decision in Powers v East Hudson Parkway Auth. (75 AD2d 776) should control the disposition of this appeal. There we reversed the motion court and transferred venue from New York County to Westchester County under CPLR 504, stating: "Despite this apparent absolute right of a governmental entity to such a transfer, there is authority for respondent’s position that, on a cross motion for retention of venue, the court has discretionary powers under the criteria of CPLR 510 (subd 3). This discretion has been exercised when the convenience of witnesses would outweigh the purpose of CPLR 504 [citations omitted]. In the absence of compelling circumstances, courts should comply with the statutory direction. In this regard it should be noted that in the balancing of interests, the convenience of public officers and employees and the use of public records at trial are given more than ordinary consideration [citation omitted]. Respondent stresses the fact that many of his material witnesses, including medical personnel, and respondent himself as a prospective witness, are located in New York County. However, with the ease of modern transportation, travel between adjacent counties has not been deemed so inconvenient as to warrant [sic] a change of venue.” (Supra, at 777.)

The dissent argues that "Westchester County has never demonstrated that it would be inconvenienced by having the matter retained in the Bronx”. In our view, this observation is beside the point. We are not confronted here with a contest of convenience. Westchester County invokes a statutory right creating a strong presumption of venue within its borders. The burden of demonstrating hardship adequate to overcome the statute is entirely plaintiffs, a burden which she never carried. It may be noted that plaintiffs own convenience is not an issue here. Her residence in Middletown, Orange County, is closer to the Westchester courthouse than to the Bronx. Furthermore, the Murray defendants, both Bronx residents, affirm through counsel that they would not be inconvenienced by a trial in Westchester.

We have examined plaintiffs other contentions, including the supposed untimeliness of the County’s motion, and find them to be without merit. The record discloses that the County first moved for this venue change at the earliest opportunity, and that motion was denied by reason of the then joinder of the City of New York as a party defendant. That impediment to relief has been removed by the stipulation dismissing the City from the action. Concur—Carro, J. P., Wallach, Kassal and Nardelli, JJ.