The following papers numbered 1 to 4 were read on Defendants’ motion to change the venue of this action: Notice of Motion — Affirmation / Exhibits 1-2 Affirmation in Opposition 3 Reply Affirmation 4 To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. Upon the foregoing papers, it is ORDERED that the motion is disposed of as follows: A. Plaintiff’s Designation of Venue This is a subrogation action brought by plaintiff GEICO as subrogor of its insured, Dawn Gredzicki. Plaintiff laid venue in Orange County, stating in its summons that “[t]he basis of venue is Plaintiff’s place of business.” The Complaint alleges in pertinent part: 1. At all times herein stated and hereinafter mentioned the plaintiff, GEICO, was and still is a foreign corporation authorized to do business in the State of New York. 2. At all times herein stated and hereinafter mentioned, the plaintiff, GEICO, maintains an office in the County of Orange, State of New York. The complaint further alleges that the Plaintiff subrogor and both Defendants were and still are residents of the County of Erie, New York, and that the underlying motor vehicle accident took place in the City of Buffalo, County of Erie, New York. B. Defendants’ Motion To Change Venue Defendants move pursuant to CPLR §§510(1) and 511(b) for an order changing the venue of this action, alleging that Plaintiff’s designation of Orange County as the place of trial was improper under CPLR §503. “To prevail on a motion pursuant to CPLR 510(1) to change venue, the defendant must show that the plaintiff’s choice of venue is improper….” Bikel v. Bakertown Realty Group, 157 AD3d 924, 926 (2d Dept. 2018); Kidd v. 22-11 Realty, LLC, 142 AD3d 488, 489 (2d Dept. 2016); Deas v. Ahmed, 120 AD3d 750 (2d Dept. 2014). If a defendant meets this burden, “the plaintiff required to establish, in opposition, that the venue selected was proper.” Pinos v. Clinton Cafe & Deli, Inc., 139 AD3d 1034, 1035 (2d Dept. 2016). See, Johnson v. Finkelstein, 145 AD3d 863, 864 (2d Dept. 2016); Deas v. Ahmed, supra. The defense argues that GEICO’s maintaining an office or place of business in Orange County does not afford a basis for its laying venue here because under CPLR §§503(a) and (c) only GEICO’s “principal place of business” constitutes its “residence” for venue purposes. The defense tenders evidence that GEICO, in Valley Psychological, P.C. v. GEICO, 95 AD3d 1546, 1548 (3d Dept. 2012), maintained that its principal place of business in New York State is located in Nassau County. Plaintiff having designated an improper venue, Defendants demand that venue be transferred to Erie County, the residence of the Plaintiff subrogor and of both Defendants. C. Pertinent CPLR Venue Provisions Article 5 of the Civil Practice Law (“Venue”) provides in pertinent part that: Except 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.” CPLR §503(a). “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…” CPLR §503(c). “The court, upon motion, may change the place of trial of an action where the county designated for that purpose is not a proper county.” CPLR §510(1). D. The “Residence” Of Foreign Authorized Insurance Corporations CPLR §503(a) provides for venue based on residence, and CPLR §503(c) provides that a corporation “shall be deemed a resident of the county in which its principal office is located.” The Second Department has held that regardless of where a corporation transacts business or maintains its actual principle office, its sole residence for venue purposes is the county of the principal office “designated in its application for authority to conduct business filed with the New York State Department of State.” Carlton Group, Ltd. v. Property Markets Group, Inc., 134 AD3d 1018, 1019 (2d Dept. 2015). Applying longstanding New York jurisprudence on this point, the Carlton Group Court wrote: Pursuant to CPLR 503(a), the venue of an action is properly placed in the county in which any of the parties resided at the time of commencement (see Panco Dev. Corp. v. Platek, 262 AD2d 292…). In support of their motion [to change venue], the appellants established that QPS was a resident of New York County at the time of commencement by producing a certified copy of QPS’s authority to conduct business filed with the New York State Department of State, which listed New York as the county in which its principal office was located [cit.om.]. The plaintiff did not dispute the fact that the application for authority designated New York County as the location of QPS’s principal office, but claimed that QPS is a resident of Queens County because that is the location of its principal place of business. However, the sole residence of a foreign corporation or a foreign limited liability company for venue purposes is the county where its principal office is located as designated in its application for authority to conduct business filed with the New York Department of State, regardless of where it transacts business or maintains its actual principal office or facility (see CPLR 503[c]; American Bldrs. & Contrs. Supply Co., Inc. v. Capitaland Home Improvements Showroom, LLC, 128 AD3d 870, 871…; Negron v. Nouveau El. Indus., Inc., 104 AD3d 655, 656…; Johanson v. J.B. Hunt Transp., Inc., 15 AD3d at 269…; Ashjian v. Orion Power Holdings, Inc., 9 AD3d 440…)…. Carlton Group, Ltd. v. Property Markets Group, Inc., supra (emphasis added). This construction of CPLR §503(c) creates an anomaly in the case of foreign authorized insurance corporations, like GEICO, because these entities are exempted by Insurance Law §108(e) from the Business Corporation Law requirement that a principal office be designated in corporate filings with the New York Department of State. See, Valley Psychological, P.C. v. GEICO, 95 AD3d 1546, 1548 (3d Dept. 2012); Providence Washington Ins. Co. v. Squier Corp., 31 AD2d 514 (1st Dept. 1968); State Farm Ins. Co. v. Brother Transportation, Inc., 15 Misc. 3d 1110(A) at *1 (Sup. Ct. Nassau Co. 2007); Pennsylvania Mfrs. Ass’n Ins. Co. v. Liberty Mut. Ins. Co., 11 Misc.3d 1086(A) at *1 (Sup. Ct. Westchester Co. 2006); General Acc. Fire & Life Assur. Corp. v. Allcity Ins. Co., 53 Misc.2d 596, 597 (Sup. Ct. Nassau Co. 1967). Faced with this conundrum, courts in the First and Second Departments have ruled that a foreign authorized insurance company’s “principal place of business” in New York — however determined — is by virtue of CPLR §503(c) the entity’s residence for venue purposes. See, Valley Psychological, P.C. v. GEICO, supra, 95 AD3d 1546, 1548 (3d Dept. 2012) (venue in Albany County was improper where neither the plaintiff nor GEICO maintained its principal place of business there); Providence Washington Ins. Co. v. Squier Corp., supra, 31 AD2d 514 (1st Dept. 1968) (foreign authorized insurance company had right to designate venue in county where it maintained its “principal office for the conduct of its business”); Mazzocki v. State Farm Fire & Casualty Co., 170 Misc.2d 70, 71 (Sup. Ct. N.Y. Co. 1996) (“foreign insurer State Farm’s principal office defines its residence for the purposes of the venue statutes”); Dubiac v. Travelers Ins. Corp., 121 Misc.2d 1090 (Sup. Ct. N.Y. Co. 1983) (“Section 503[c] of the CPLR deems a foreign corporation authorized to transact business in this state a resident of the county in which its principal office is located”). GEICO v. Star and Strand Transportation, Inc., 66 Misc.3d 686, 117 NYS3d 472 (Sup. Ct. Albany Co. 2019), is squarely on point. In that case, as in the case at bar, GEICO attempted to lay venue of a subrogation action in Orange County based solely on the fact that it maintained a place of business there. The Court held: …[GEICO] represented in Valley Psychological, P.C. v. Government Employees Ins. Co., 95 AD3d 1546, 1548…(3d Dept. 2012) that it had its principal place of business in this state, located in Nassau County. Nowhere in the present record does it claim, to the contrary, that Orange County is the location of its principal office. Absent any such representation, Orange County is not a proper basis for venue under the clear language of CPLR 503(c). GEICO v. Star and Strand Transportation, Inc., supra, 117 NYS3d at 475. One lower court has held, to the contrary, that “a foreign insurance company with offices throughout the state may bring an action in any county where they maintain an office.” See, State Farm Ins. Co. v. Brother Transportation, Inc., supra, 15 Misc.3d 1110(A) at *1 (Sup. Ct. Nassau Co. 2007). That court wrote: New York’s appellate courts have not established the scope of available venues to foreign insurance companies with offices throughout the state. However, at least two lower courts have determined that a foreign insurance company may bring an action in any county where they maintain an office [citing Pennsylvania Mfrs. Ass'n Ins. Co. v. Liberty Mut. Ins. Co. and General Acc. Fire & Life Assur. Corp. v. Allcity Ins. Co., supra]. Adopting the rule of the lower courts in the present matter will not prejudice defendants, since they are still afforded the opportunity to challenge an unfair choice of venue, i.e., to insure an impartial trial or to accommodate the convenience of material witnesses. CPLR §§510(2) & 510(3). Furthermore, allowing a foreign insurance company residence in any county where they maintain an office is consistent with CPLR §503(a), which provides that a party residing in more than one county shall be deemed a resident of each such county. Id., 15 Misc.3d 1110(A) at *1 (emphasis added). Pennsylvania Mfrs. Ass’n Ins. Co. v. Liberty Mut. Ins. Co., supra, 11 Misc.3d 1086(A) (Sup. Ct. Westchester Co. 2006), on which the Brother Transportation Court relied, similarly states: At least one lower court has determined that as long as a foreign insurance company maintains an office in a county, that county is proper for venue purposes [citing General Acc. Fire & Life Assur. Corp. v. Allcity Ins. Co., supra]. Id., 11 Misc.3d 1086(A) at *1. This line of authority rests on a misreading of the holding of General Acc. Fire & Life Assur. Corp. v. Allcity Ins. Co., supra, 53 Misc.2d 596 (Sup. Ct. Nassau Co. 1967). The plaintiff General Accident Fire & Life Assurance Corp. was a foreign authorized insurance company which maintained several branch offices in New York, including one in Nassau County where it laid venue of the action. The defendant moved to change venue on the ground that the Nassau County office “was not designated as its principal place of business in the State of New York.” Id., at 597. The court held that because foreign authorized insurance companies are not required by law to designate a principal place of business in New York, the defendant had failed to sustain its burden of showing that General Accident did not have the right to choose a venue based on its Nassau County office: The residence of a foreign corporation, authorized to do business in this state, pursuant to the provisions of CPLR 503(c) has been interpreted to mean the location of its office within the state designated in its application for authority to do business filed with the Secretary of State [cit.om.]. The requirement for designating such an office in its application is found in Business Corporation Law §1304(a)(4). Such provision is expressly made not applicable to an incorporated alien insurer [cit.om.]. The requirements for the issuance of a license to an alien insurer and the content of such license are set forth in §§40 and 42 of the Insurance Law. It should be pointed out that neither section requires the designation of the principal place of business of such corporation in New York. The papers before this court do not show that any rule or regulation required plaintiff. General Accident, to designate its principal place of business in this state, nor that it in fact made such a designation. Under the circumstances, since plaintiff [General Accident] maintains an office in Nassau County which is handling the claim against the insured involved in this action, defendant has not sustained its burden of showing that plaintiff did not have the right to designate Nassau County as the venue of this action. (Cf. Circle Bake Shop, Inc. v. Demand Oil Corp., 21 Misc.2d 643…). The motion is, therefore, denied. Id., at 597. Contrary to the statements in State Farm Ins. Co. v. Brother Transportation, Inc., supra, and Pennsylvania Mfrs. Ass’n Ins. Co. v. Liberty Mut. Ins. Co., supra, then, General Acc. Fire & Life Assur. Corp. v. Allcity Ins. Co. does not hold that a foreign insurance company may bring an action in any county where it maintains an office. That case, like the Circle Bake Shop, Inc. case on which the court relied, is about the defendant’s burden of proof on a motion to change venue, not about the substantive bases for venue in an action brought by a foreign authorized insurance company.1 Reduced to its essence, the holding of the case is not that General Accident, as a foreign authorized insurance company, could properly bring an action in any county where it maintains an office for business, but rather, that the defendant failed to demonstrate that its Nassau County office was not a “principal place of business” simply by showing that it had not been designated as such, since no law required General Accident to designate its principal place of business in this state. Here, in contrast, Defendants met their burden of proof on the motion to change venue by demonstrating that GEICO had, in Valley Psychological, P.C. v. GEICO, supra, maintained that its principal place of business in New York was in Nassau County, not Orange County. GEICO’s assertion in Valley Psychological, P.C., while not conclusive, constitutes an informal judicial admission evidencing the fact admitted. See, People v. Brown, 98 NY2d 226 (2002); Gangi v. Fradus, 227 NY 452, 456-457 (1920), See generally, 1A NY PJI3d 1:55, at 66-71 (2020). In opposition, GEICO has neither denied that the location of its principal place of business is in Nassau County, nor asserted that it is in Orange County. Hence, for purposes of the motion before the Court, the Court finds that GEICO’s principal place of business in New York is located in Nassau County. E. Conclusion In view of the foregoing, the Court holds in accordance with the plain language of CPLR §503(c) that the residence of a foreign authorized insurance company for purposes of venue is the county wherein it maintains its principal place of business in New York. See, Valley Psychological, P.C. v. GEICO, supra; Providence Washington Ins. Co. v. Squier Corp., supra; GEICO v. Star and Strand Transportation, Inc., supra; Mazzocki v. State Farm Fire & Casualty Co., supra; Dubiac v. Travelers Ins. Corp., supra. Since the evidence before the Court shows that (1) GEICO’s principal place of business is in Nassau County, and (2) none of the parties to this action reside in Orange County, GEICO’s designation of Orange County as the venue of this action was improper. See, CPLR §503(a). “The court, upon motion, may change the place of trial of an action where the county designated for that purpose is not a proper county.” CPLR §510(1). “A plaintiff who selects an improper venue in the first instance forfeits the right to choose the place of venue.” Fisher v. Finnegan-Curtis, 8 AD3d 527, 528 (2d Dept. 2004). See, Mei Ying Wu v. Waldbaum, Inc., 284 AD2d 434, 435 (2d Dept. 2001). Under the circumstances, the Court grants Defendants’ motion to change the venue of this action to Erie County, where Plaintiff subrogor and both Defendants reside, and where the underlying motor vehicle accident took place. It is therefore ORDERED, that the motion for a change of venue is granted, and it is further ORDERED, that the action is transferred to Supreme Court, Erie County, and it is further ORDERED, that pursuant to CPLR §511(d), upon the filing of this Order the Clerk of the Court shall forthwith deliver to the Clerk of Erie County all papers filed in the action entitled GEICO a/s/o Dawn Gredzicki v. Linda Lipscomb and Anthony Lipscomb, Index No. EF001937-2020, and certified copies of all minutes and entries therein. The foregoing constitutes the decision and order of the Court. Dated: June 25, 2020
