The question in this case is whether Supreme Court properly granted a motion to transfer venue from the Bronx to Westchester County, where the parties disputed whether any defendant had a principal place of business in the Bronx.
Article 5 of the CPLR governs venue; two of its provisions are relevant here. CPLR 503(a) provides that venue is proper in any county where a defendant resides at the time the action is commenced. CPLR 503(d) provides that, for cases involving an individually-owned business, venue is proper in the county where the business has its principal place of business. The venue rules often permit venue in multiple counties; where that’s the case, venue is proper in any authorized county. And a plaintiff’s choice of forum is generally given deference. So a party seeking to transfer venue has to affirmatively show that venue is not proper in the plaintiff’s chosen forum to prevail on a venue-transfer motion.
This is a medical malpractice case against Westmed Medical Group, Rye Ambulatory Surgery Center, and Dr. Harold Goldstein. Plaintiff commenced the action in the Bronx, and defendants sought to transfer it to Westchester County. It was undisputed that the defendants resided in Westchester County: the business entities had their principal place of business there, and the individual defendant actually resided there.
Defendants also sought to establish that defendant Goldstein’s medical practice, as an individually-owned business, had its principal place of business in Westchester, not the Bronx. They submitted an affidavit from Goldstein stating, among other things, that 75 percent of his income was derived from seeing patients in Westchester County and that he saw only 20-25 patients per month in the Bronx. Plaintiff argued that Goldstein’s principal place of business was the Bronx because he had listed a Bronx address on a license registration form filed with the New York State Education Department (NYSED).
Supreme Court found that venue was improper in the Bronx and transferred venue to Westchester County, but a divided panel of the First Department reversed. The majority held that Goldstein’s affidavit was not competent to establish that his principal place of business was Westchester County, in effect because the affidavit did not attach “official documentation from the NYS Division of Corporations” identifying his principal place of business. And even if it was competent, the majority thought that Goldstein’s affidavit was insufficient to overcome plaintiff’s proof—namely, “Goldstein’s license registration listing an address in the Bronx” filed with NYSED. In the majority’s view, this document was analogous to a corporation’s principal-office designation filed with the Secretary of State. And to the majority, allowing a party to controvert such a conclusive designation through extraneous evidence would create a “minitrial on venue questions” that the Legislature “did not intend to create.”
The dissenters thought that Goldstein’s affidavit was persuasive and that the majority gave too much weight to the license-registration document filed with NYSED. In the dissenters’ view, Supreme Court did not abuse its discretion in finding, as a matter of fact, that Goldstein’s practice did not have its principal place of business in the Bronx. And because there was support for this factual finding, the dissenters found no error in Supreme Court’s conclusion that the Bronx was not a proper forum.
The First Department granted defendants leave to appeal.
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