CASTELLANOS v. CITY OF NEW YORK (2025)

Order, Supreme Court, Bronx County (Myrna Socorro, J.), entered on or about July 8, 2024, which denied defendants’ motion to change venue to Queens County, unanimously reversed, on the law, without costs, and the motion granted.

After plaintiff commenced this action in Bronx County defendants timely served a demand for a change of venue to Queens County, where defendant New York City School Construction Authority has its principal office (see CPLR 505[a], 511).  When plaintiff did not respond to the demand, defendants moved to change venue under CPLR 510(1).  In opposition to the motion, plaintiff did not dispute that his choice of venue was improper, nor did he dispute that Queens County was the proper venue.  Instead, he requested under CPLR 504(3) that venue be changed to Kings County where the accident occurred.  Plaintiff did not file a cross-motion to change venue to an alternate county.

Supreme Court improperly exercised its discretion when it denied defendants’ motion and found that Kings County was the proper venue for the action.  Once defendants, including the City of New York, followed the procedures set forth in CPLR 511 and established that plaintiff's initial choice of venue was improper under CPLR 505(a), their motion to change venue to Queens County should have been granted in its entirety as of right (see Richardson v. City of New York, 184 A.D.3d 453, 454, 126 N.Y.S.3d 10 [1st Dept. 2020]).  Plaintiff forfeited his right to select venue when he failed to respond to defendants’ demand to change venue to the proper forum (see id.;  see also Lynch v. Cyprus Sash & Door Co., 272 A.D.2d 260, 261, 708 N.Y.S.2d 94 [1st Dept. 2000];  Kelson v. Nedicks Stores, Inc., 104 A.D.2d 315, 316, 478 N.Y.S.2d 648 [1st Dept. 1994];  CPLR 510[1]).  Furthermore, no party moved to transfer venue to an alternate county (see Richardson, 184 A.D.3d at 454, 126 N.Y.S.3d 10;  Lynch, 272 A.D.2d at 261, 708 N.Y.S.2d 94;  Kelson, 104 A.D.2d at 316, 478 N.Y.S.2d 648).