GOERCKE v. Rizwan A. Khawaja, Defendant. (2000)

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered January 20, 2000, which denied defendant Kyun's motion to change venue from New York County to Westchester County and granted plaintiff's cross motion to retain venue in New York County, unanimously affirmed, without costs.

 When plaintiff chose an improper venue, she forfeited her right to select venue initially (see, Berberich v. York Scaffold Equip. Corp., 177 A.D.2d 451, 576 N.Y.S.2d 547) and, in the absence of plaintiff's cross motion, defendant Kyun would have been entitled to change venue to Westchester County, where plaintiff resides (see, Kielczewski v. Pinnacle Restoration Corp., 226 A.D.2d 211, 212, 640 N.Y.S.2d 551).   However, plaintiff's initial choice of an improper venue did not preclude her cross motion for a change of venue pursuant to CPLR 510(3) addressed to the court's discretion (see, Carrasco v. Cablevision Sys. Corp., 248 A.D.2d 122, 123, 669 N.Y.S.2d 808), and when plaintiff showed that the accident occurred in New York County and that material witnesses would be inconvenienced by a change of venue from New York County to Westchester County, the venue sought by defendant Kyun, it was incumbent upon defendant Kyun to set forth “countervailing conveniences justifying retention in a county other than where the cause of action arose” (Stonestreet v. Gen. Motors Corp., 201 A.D.2d 350, 607 N.Y.S.2d 327).   The sole convenience set forth by defendant Kyun is plaintiff's residence in Westchester County, a factor which is not entitled to great weight in any case (see, Quiles v. Orsi, 182 A.D.2d 499, 582 N.Y.S.2d 22), but particularly not here where plaintiff seeks to forgo trial in her county of residence.   Thus, while venue in Westchester County may be proper, the court properly exercised its discretion in denying defendant's motion, and granting plaintiff's cross motion to retain venue in New York County (see, Morales v. City of New York, 189 A.D.2d 581, 591 N.Y.S.2d 832;  Clinton v. Griffin, 176 A.D.2d 501, 574 N.Y.S.2d 692).

MEMORANDUM DECISION.