In an action to recover for personal injuries, the defendants move to change venue from Erie County to Cattaraugus County. On October 6, 2017, Jaysen Bray was a passenger in a vehicle owned by Amy Noesen and operated by Logan Kiff. The vehicle left the roadway and smashed into a tree while on Creek Road in Yorkshire, NY. The Town of Yorkshire is in Cattaraugus County, a mostly rural county that borders the more populous Erie County. Jaysen Bray was immediately transported to the Erie County Medical Center in Buffalo, NY. On December 17, 2017, the Erie County Surrogate appointed the plaintiff as Jaysen’s Temporary Legal Guardian, while her son remained at the Erie County Medical Center. On December 27, 2018, the plaintiff filed a Summons & Complaint in Erie County, naming Amy Noesen and Logan Kiff as defendants. The claim against them is grounded in the allegedly negligent operation of their vehicle. The Town of Yorkshire and the County of Cattaraugus were also named as defendants. Additionally, the Town of Concord and the Village of Springville — municipalities located in Erie County — as well as the County of Erie, were named as defendants. The claim against all of the named municipal entities is grounded in their alleged design and/or maintenance of the roadway. As set forth in the plaintiff’s Summons, “Erie County is designated as the place of trial on basis of CPLR §504.” On May 7, 2019, Plaintiff filed a Request for Judicial Intervention and requested a preliminary conference. The case was assigned to this court. Meanwhile, the Town of Yorkshire and the County of Cattaraugus timely filed a Demand to Change Venue to Cattaraugus County. A motion for the same came to be heard in Cattaraugus County Supreme Court. On July 23, 2019, the Hon. Justice Jeremiah Moriarty, issued an order denying the motion but, “without prejudice to renew the same before the Hon. Frank Sedita.” At about the same time, the Town of Concord and the Village of Springville moved this court for an order dismissing plaintiff’s Complaint in its entirety, by way of summary judgment, pursuant to CPLR §3212. The County of Erie simultaneously moved to dismiss the Complaint, for failure to state a cause of action, pursuant to CPLR §3211(a)(7). While the statutory basis for the relief requested differed, the defendants’ principal contention was the same: that the accident occurred on a Cattaraugus County roadway. After hearing from all parties, the court found that the Erie County defendants had conclusively established that they neither owned, maintained or controlled the road where the accident occurred. On July 29, 2019, the court formally granted the motions and dismissed the plaintiff’s claims against the Town of Concord, the Village of Springville and the County of Erie. Defendants Town of Yorkshire and County of Cattaraugus now renew their motion to change venue from Erie County to Cattaraugus County. The motions are brought pursuant to Sections 504(1) and 510(1) of the CPLR. In opposing the the defendants’ motion to change venue, the plaintiff contends that venue is proper in Erie County under CPLR §503(b); that the defendants have failed to meet the burden of persuading the court that the action should be transferred to Cattaraugus County; and, that compelling circumstances justify keeping the action in Erie County. In support of the last contention, the plaintiff’s affidavit alleges, inter alia, that, “all of Jaysen’s health care providers are in Erie County and located at the Erie County Medical Center” ( 5) and that “it would be a great hardship to require all these physicians and specialists to travel to Cattaraugus County at the time of trial and I am concerned it would make it more difficult to secure their testimony” ( 9). No other witness — including a health care provider, physician or specialist — has submitted an affidavit or affirmation in support of or in opposition to the defendants’ motion to change venue. The venue rules of Article 5 of the CPLR determine which county is the proper place for the action. Section 503 is the main venue-choosing provision of the CPLR. Pursuant to CPLR §503(a), the county in which the plaintiff resides is a basis for venue. Pursuant to CPLR §503(b), a testamentary guardian shall be deemed a resident of the county of her appointment. Thus, even though the plaintiff is reportedly domiciled in Wyoming County, she is a resident of Erie County for purposes of venue. CPLR §504 supersedes the venue rules of CPLR §503 (Alexander, McKinney’s Practice Commentaries, CPLR §504) and governmental defendants usually get the favor of being sued in their county (Siegel, New York Practice, 5th Ed., §120). CPLR §504(1) provides that an action against a county and/or a town within the county “shall” be brought in that county. Despite the mandatory language of the statute, venue may still be changed to a non-mandated county upon a showing of special circumstances (see, Xhika v. Rocky Point School District, 125 AD3d 646). The grounds for a change of venue motion are listed in Section 510 of the CPLR. Pursuant to CPLR §510(1), the place of trial may change when the county designated for the trial of the action is not the proper county. Pursuant to CPLR §510(3), the place of trial may also change when the convenience of the material witnesses and the ends of justice will be promoted by the change. Defendants move for a change of venue under CPLR §510(1), alleging that Erie County is an improper place for the action because the accident occurred in Cattaraugus County. This is important to note because the plaintiff misapprehends the defendants’ motion as one for a discretionary change of venue under CPLR §510(3). The plaintiff points to Rowland v. Slayton (169 AD3d 1474) as being, “right on point [because it] clearly establishes these defendants in moving for a change of venue [are] required to submit proof of (1) names, addresses, and occupations of prospective witnesses who would be inconvenienced by travelling to Erie County to testify; (2) statements of such witnesses’ contemplated testimony with sufficient specificity, and (3) the basis for concluding that such witnesses would be available and willing to testify. Neither of these defendants has produced any of this information” (August 27, 2019 correspondence of Stephen R. Foley). Plaintiff’s reliance upon Rowland v. Slayton is misplaced. Rowland did not involve a municipal defendant premising venue upon CPLR §504(1) and moving for a change of venue under §CPLR 510(1). The non-municipal defendant in Rowland instead moved for a discretionary change of venue under §CPLR 510(3), which required him to provide a litany of information, including supporting affirmations from the anticipated witnesses themselves, sufficiently specific to allow the court to determine whether their testimony would be material, whether they were available and how they would be inconvenienced. The defendants in this case have not made a CPLR §510(3) “convenience of witnesses” motion. Consequently, they need not submit affidavits attesting to the materiality, availability or inconvenience of witnesses. Nor do they bear the burden of persuading the court that the convenience of the material witnesses and the ends of justice would be promoted by a change to Cattaraugus County. Instead, the defendants have made a CPLR§510(1) “improper county” motion, which is premised on the statutory mandate of CPLR §504(1), which directs that the action must be placed in the county where the accident occurred. Placing the action in Cattaraugus County is also consistent with the general rule that tort actions should ordinarily be tried where the cause of action arose (McLaughlin v. City of Buffalo, 259 AD2d 1014). Indeed, it is basic decisional law that the place of the tort is a primary consideration in determining venue and that a rural county is favored as against an urban county (Beardsley v. Wyoming County Community Hospital, 42 AD2d 821). Accordingly, the court finds that Cattaraugus County is the proper venue for this action. The court may nonetheless deny the defendants’ motion to change venue to Cattaraugus County, should the plaintiff demonstrate the existence of special or compelling countervailing circumstances which favor keeping the action in Erie County (Fergile v. Payne, 147 AD3d 727). All that is submitted in this regard is the affidavit of the plaintiff herself, which alleges there would be “great hardship” to an unspecified number of potential medical witnesses whom she is “concerned” would not travel to Cattaraugus County. At best, such allegations are speculative and self-serving opinions regarding what others might do. Notably absent is any affidavit or affirmation from anyone else, let alone one from a likely trial witness, setting forth the nature of the medical treatment rendered or why the witness would be inconvenienced by travelling to Cattaraugus County (see, Seguin v. Landfried, 96 AD3d 1433). In short, the plaintiff has failed to demonstrate the existence of any special or compelling countervailing circumstances which favor keeping the action in Erie County. Accordingly, the defendants’ motion to change venue from Erie County to Cattaraugus County is GRANTED. The foregoing shall constitute the decision and order of this court. Dated: November 27, 2019
