DECISION AND ORDER on March 12, 2018, plaintiff commenced this action to recover damages for personal injuries he allegedly sustained as a result of a March 20, 2015 motor vehicle accident. The accident occurred on a Manhattan street, and involved plaintiff, who was driving a bus, and defendant Lightbody, who was driving a vehicle that plaintiff alleges was owned by defendants T.E.V. Corp. and TEV Corporation (“the TEV defendants”). (Plaintiff alleges too that defendant Lightbody was an employee of the TEV defendants.) According to the complaint, plaintiff is a resident of Pennsylvania, defendant Lightbody is a resident of New Jersey, and the TEV defendants maintain their principal place of business in Essex County, New Jersey.1 According to the affidavits of service, plaintiff effected service of process on the TEV defendants on May 30, 2018 by service on their “general agent” (“Mr. Michael V.”) at a New Jersey address, and on May 31, 2018 by service on the New York State Secretary of State under Business Corporation Law §307 (“Service of process on unauthorized foreign corporation”). Service of process was effected on defendant Lightbody by personal service on him at his New Jersey residence on June 5, 2018. By a demand to change venue, filed with and served through the New York State Courts Electronic Filing System on May 2, 2019, defendants demanded that, under CPLR 510 and 511, plaintiff change venue of the action to New York County. Defendants filed and served their joint answer four days later. On May 10, 2019, defendants moved to change venue of the action from Bronx County to New York County. Relying specifically on CPLR 510(1), defendants argued that the venue selected by plaintiff is improper because none of the parties to the action is a Bronx resident. Defendants highlighted that plaintiff is a resident of Pennsylvania and defendant Lightbody is a resident of New Jersey; they highlighted also that the TEV defendants’ principal places of business are in New Jersey. Defendants maintained that by virtue of CPLR 503(c) the TEV defendants are deemed residents of New York County. Because the only parties that are New York State residents are the TEV defendants and their residences are, by virtue of CPLR 503(c), in New York County, defendants contended that residence-based venue is appropriate only in New York County. Additionally, defendants argued that venue is proper in New York County because that is the county in which a substantial part of the events giving rise to this action occurred (see CPLR 503[a]). In support of their motion, defendants submitted the pleadings, and their demand to change venue. In opposition, plaintiff claimed that defendants’ motion, which was made approximately one year after they were served, is untimely. Moreover, plaintiff claimed that all parties reside outside of New York State and, therefore, he is free to select any county in the State as venue for this action (see CPLR 503[a]). In reply, defendants, among other things, requested that, if the court concludes that plaintiff’s venue choice is proper, the court change venue to New York County in its discretion. Timeliness of Motion Regarding the timeliness of defendants’ motion to change venue under CPLR 510(1), CPLR 511(a) provides that “[a] demand under [CPLR 511](b) for change of place of trial on the ground that the county designated for that purpose is not a proper county shall be served with the answer or before the answer is served.” CPLR 511(b), in turn, states that “[t]he defendant shall serve a written demand that the action be tried in a county he [or she] specifies as proper. Thereafter the defendant may move to change the place of trial within 15 days after service of demand, unless within 5 days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant.”2 If the defendant fails either to serve the demand with the answer (or before service of the answer), or to move to change venue as improper within 15 days after service of the demand, the defendant’s motion to change venue under CPLR 510(1) should be denied. (If a motion to change venue under CPLR 510[1] is untimely, the court may still consider a discretionary change of venue under CPLR 510[3] [see Saint-Louis v. Esposito, 171 AD3d 824 (2d Dept 2019)]; Siegel & Connors, New York Practice §123 [6th ed]; see also Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 511, C511:2 [main vol.].) Here, defendants complied with the timing requirements of CPLR 511: they served their demand prior to serving their answer (see CPLR 511[a]), and they moved to change venue within 15 days after service of the demand (see CPLR 511[b]). Although defendants did not serve their demand or interpose their answer until approximately 11 months after service of process was effected on them, nothing in CPLR article 5 required defendants to act sooner to challenge venue as improper. Defendants’ time to serve the demand was tied to when they interposed their answer, and their time to move to change venue was tied to when they served the demand. Moreover, that defendants may have interposed a late answer (which plaintiff apparently did not reject) does not modify the timing requirements for serving a demand and making a motion to change venue under CPLR 510(1).3 Improper Venue — CPLR 510(1) CPLR 510(1) provides that venue may be changed where the county designated by the plaintiff “is not a proper county.” “Improper” in this connection means that the venue selected by the plaintiff does not comport with CPLR 501 and 503-508 (or any other relevant venue-regulating statute) (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 510, C510:1, at 135 [main vol.]). The controlling venue statute in this action is CPLR 503. Entitled “Venue based on residence,” CPLR “503 is the main venue-setting provision” (Siegel & Connors, New York Practice §118, at 247). Subdivision (a) of the statute provides that, “[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff.” Subdivision (c), which addresses the “residences” of corporations for venue purposes, states that “[a] domestic corporation, or a foreign corporation authorized to transact business in the state, shall be deemed a resident of the county in which its principal office is located; except that such a corporation, if a railroad or other common carrier, shall also be deemed a resident of the county where the cause of action arose.” Defendants have the initial burden of demonstrating that plaintiff’s choice of venue — Bronx County — is improper and that defendants’ choice — New York County — is proper (see Lividini v. Goldstein, ___AD3d___, 2019 NY Slip Op 06150 [1st Dept 2019]; see also Mejia v. J. Crew Operating Corp., 140 AD3d 505 [1st Dept 2016]). Plaintiff laid venue in Bronx County because none of the parties resided in New York State at the time the action was commenced: plaintiff was a resident of Pennsylvania, defendant Lightbody was a resident of New Jersey, and the TEV defendants are foreign corporations that are not authorized to do business in New York. Because the TEV defendants are foreign corporations that are not authorized to do business in this State, they are treated as nonresidents for venue purposes (see Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 503, C503:3, at 24 [main vol.] ["A foreign corporation that has not become authorized to do business in New York is treated as a nonresident for venue purposes regardless of the volume of business actually being conducted in a given county."]). Thus, any county in New York State was a “proper” county for venue of this action (see CPLR 503[a]). Defendants’ contention that the TEV defendants are deemed residents of New York County under CPLR 503(c) because the cause of action giving rise to this litigation arose in that county, and that New York County is therefore the “proper” county for venue of this action, is without merit. First, CPLR 503(c) applies only to domestic corporations and foreign corporations authorized to transact business in New York State, and the TEV defendants are foreign corporations that are not so authorized. Second, CPLR 503(c) provides that a corporation that is “a railroad or other common carrier” is deemed a resident of the county where the cause of action arose,4 and no party has suggested (let alone established) that the TEV defendants are either a railroad or other form of common carrier. Defendants raise a novel question: whether a plaintiff pursuing a claim arising from an event that occurred in New York State must place venue of an action involving no New York residents in “the county in which a substantial part of the events or omissions giving rise to the [subject] claim occurred”? If a plaintiff is required to place venue of such an action in the county in which a substantial part of the underlying events occurred, plaintiff’s choice of venue was improper, and defendants’ choice of venue was proper, as the events giving rise to this action occurred in New York County. This novel question manifests itself by virtue of a 2017 amendment to CPLR 503(a) (L 2017, c 366). Prior to the October 23, 2017 effective date of that amendment, subdivision (a) required venue to be placed in a New York State county in which at least one of the parties resided at the time of commencement. If none of the parties resided in New York State at the time of commencement, the plaintiff could bring the action in any county of the State. The 2017 amendment added “the county in which a substantial part of the events or omissions giving rise to the claim occurred” as a proper venue for an action. Thus, as observed above, CPLR 503(a) currently states: “[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff.” The statute is phrased in the disjunctive, the word “or” connecting the propositions that venue may be laid in the county in which one or more of the parties reside or the county in which a substantial part of the acts or omissions giving rise to the claim occurred, with the proposition that the plaintiff may choose any county when none of the parties reside in New York State. The Legislature’s use of the word “or” makes clear that the propositions are alternatives; plaintiff can choose the venue option he or she wishes, so long as the plaintiff selects an option that is appropriate under the venue-related facts of the case (see Festa v. Leshen, 145 AD2d 49, 59 [1st Dept 1989] ["The word 'or' is 'a disjunctive particle indicating an alternative and it often connects a series of words or propositions presenting a choice of either'"], quoting Colbert v. International Sec. Bureau, 79 AD2d 448, 463 [2d Dept 1981]; McKinney’s Cons Laws of NY, Book 1, Statutes §235). Thus, the 2017 amendment expanded the number of venue options a plaintiff may have in a given case (see Alexander, Practice Commentaries, supra, C503:1, at 12 [2019 Cumulative Pocket Part, 2017 entry]). Nothing in the legislative history of the amendment suggests that the addition of the substantial-part-of-the-events-or-omissions option was meant to compel a plaintiff pursuing a claim arising from an event that occurred in New York State to place venue of an action involving no New York residents in “the county in which a substantial part of the events or omissions giving rise to the [subject] claim occurred.”5 A foreign plaintiff with a claim against a foreign defendant arising from events that occurred in New York State is free to lay venue in any of the State’s 62 counties (see CPLR 503[a]). Thus, the Bronx is a proper county for venue of this action (see Lobo v. Gatehouse Partners, LLC, 169 AD3d 555, 555 [1st Dept 2019] ["Plaintiff was permitted to designate any county as the venue for the action, because neither he nor defendant was a resident of New York when the action was commenced (CPLR 503[a]; 510[1]). Therefore, Bronx County is a proper venue.”]), and defendants therefore failed to meet their initial burden on their motion to change venue under CPLR 510(1). Discretionary change of venue — CPLR 510(3) For the first time in reply, defendants argued that, should the court conclude that Bronx County is a proper county for venue of this action, the court should effect a discretionary change of venue to New York County because that is the county in which the accident occurred. Essentially, defendants invoke CPLR 510(3), which allows the court to change venue of an action where “the convenience of material [non-party] witnesses and the ends of justice will be promoted by the change.” “In order to obtain relief pursuant to CPLR 510(3), the movant must assert all of the following information: the names and addresses of the witnesses, the substance and materiality of their testimony relative to the issues in the case, that the witnesses have been contacted and are willing to testify on behalf of the movant, and the manner in which they will be inconvenienced by a trial in the county where the action was commenced” (Gissen v. Boy Scouts of Am., 26 AD3d 289, 290-291 [1st Dept 2006]; see Manzari v. Burrows, 89 AD3d 440 [1st Dept 2011]; see also Moumouni v. Tappen Park Assocs., Inc., 118 AD3d 427 [1st Dept 2014]). Defendants provided none of the particulars required by the First Department caselaw, and have therefore failed to demonstrate that a discretionary change of venue is warranted. Accordingly, it is hereby ORDERED that defendants’ motion is denied; and it is further, ORDERED that the Clerk of the Court shall issue a case scheduling order on October 25, 2019. This constitutes the decision and order of the court. Dated: September 6, 2019
