Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendants Warren Dauber and Cheerawan Dauber (hereinafter the Daubers) filed on May 15, 2020, under motion sequence number one, for an order pursuant to CPLR 510 and CPLR 511 changing the place of trial of this action from the Supreme Court of the State of New York for the County of Kings, to the Supreme Court of the State of New York for the County of Queens. The motion is unopposed. -Notice of motion -Affirmation in support -Exhibits A-B DECISION & ORDER BACKGROUND On November 12, 2019, plaintiff Jewel Balkan (hereinafter Balkan) commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk’s office. On March 10, 2020, the Daubers joined issue by filing a verified answer with discovery demands. At the same time, the Daubers filed a demand pursuant to CPLR 511 (a) and (b), that the place of trial be changed from the County of Kings to the County of Queens on the ground that the county designated for the place of trial is not a proper county in that none of the parties resides in said County. The verified complaint alleges the following salient facts. On November 14, 2016, Balkan was driving an automobile bearing license plate number AJJ2211, owned by Vaidmati Sookhoo, at or near the intersection of 95th Avenue and 132nd Street, Queens, New York. At the same date and time, Cheerawan Dauber was driving an automobile bearing license plate number GPT6346 (hereinafter the defendants’ vehicle) with the permission of its owner, Warren Dauber, at or near the intersection of 95th Avenue and 132nd Street, Queens, New York. On that date and location, the defendants’ vehicle came into contact with the plaintiff’s vehicle (hereinafter the subject accident). The collision was due to Cheerawan Dauber’s negligent operation of the defendants’ vehicle. The collision allegedly caused the plaintiff to sustain serious physical injury. Balkan stated in the first allegation of fact in the verified complaint that she was a resident of Queens County when the subject accident occurred and when the verified complaint was made. There is no dispute that the subject accident happened in the County of Queens. On March 9, 2020, the defendants served an answer and demanded a change of venue to the County of Queens. The defendants were not able to make the instant motion within fifteen days of their demand as required by CPLR 511 (b) due to the COVID-19 pandemic. The delay is excused, and the motion is deemed timely. MOTION PAPERS The Daubers’ motion papers consist of a notice of motion, an affirmation in support and two annexed exhibits labeled A and B. Exhibit A is a copy of the summons and verified complaint. Exhibit B is the Daubers’ verified answer with discovery demands. LAW AND APPLICATION Article 5 of the CPLR generally sets forth the rules governing the correct choice of the place of trial. CPLR 503, captioned “venue based on residence”, sets forth the rules governing venue for different causes of action based on the residences of the parties. CPLR 510 sets forth the grounds for changing the place of trial and CPLR 511 sets forth the procedure for seeking the change. The place of trial or venue means the geographical subdivision in which an action may be brought and assumes that the chosen court already has both subject matter and personal jurisdiction. A motion to change venue pursuant to CPLR 510 (1) is premised on a claim that the venue chosen is improper. Its review requires that the court identify the underlying cause of action within one of four categories. The first category is for actions affecting interest in real property, known as local actions. The second category encompasses all other actions, popularly known as transitory actions. The third category is an action to recover chattel which the parties may elect to treat as local or transitory. The fourth category is for actions where the parties have contracted to a choice of venue, whether the action has been treated as local or transitory. The case at bar is an action for personal injuries caused by an automobile accident and is therefore transitory in nature and governed by CPLR 503 (a). CPLR 503 (a) provides: 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; 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. A party resident in more than one county shall be deemed a resident of each such county. Actions brought in the wrong county contrary to CPLR 503 (a) may be changed as of right. A defendant’s desire for a change of venue as of right must be commenced by first issuing a demand upon the plaintiff and absent acquiescence by plaintiff, by a motion filed with the court pursuant to CPLR 511 (b). CPLR 511 (b) provides: Demand for change of place of trial upon ground of improper venue, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper. CPLR 510 provides three grounds for changing the place of trial of an action. The court may change the place of trial because the county designated for that purpose is not a proper county; or there is reason to believe that an impartial trial cannot be had in the proper county; or the convenience of material witnesses and the ends of justice will be promoted by the change. Only the first ground is considered a change as of right. The defendants used the procedural vehicle of CPLR 511 (b) by first serving the plaintiff with a demand to change venue along with their answer and forwarding a proposed stipulation to consent to the change. Defendants’ motion papers seek a change of venue as of right by alleging that Kings County is an improper choice. In order to prevail on a motion pursuant to CPLR 510 (1) to change venue, a defendant must show that the plaintiff’s choice of venue is improper, and also that the defendant’s choice of venue is proper (Vereen v. Flood, 184 AD3d 758 [2nd Dept 2020], citing Deas v. Ahmed, 120 AD3d 750, 750 [2nd Dept 2014]; see CPLR 511 [b]). Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper (id.) In the instant motion, defendants have established that they followed the procedural requirements of CPLR 511 (b) but for the excused delay due to the COVID-19 pandemic. It is undisputed that the plaintiff resides in Queens county and the accident occurred in Queens county. Therefore, it is undisputed that the plaintiff’s selection of venue to Kings county was improper and the change of venue to Queens county is proper. The plaintiff has not opposed the motion. Therefore, the defendants’ motion to change the place of trial to Queens County is granted. ORDERED that within 30 days of this order, counsel for movant shall serve a copy of this order with notice of entry upon the Clerk of this Court, shall pay the appropriate transfer fee, if any, and shall contact the staff of the Clerk of this Court and cooperate in effectuating the transfer. The foregoing constitutes the decision and order of this court. *Researched and drafted with the assistance of Miss-Kye Gallon, graduate of John Jay College of Criminal Justice Dated: August 20, 2020
