VILLALBA v. BRADY DM (2018)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered February 8, 2018, which granted the motion of defendants John (“Jack”) R. Brady and Jack R. Brady d/b/a Jack Brady Custom Builder (collectively Brady defendants) to change venue from New York County to Suffolk County, unanimously reversed, on the law, without costs, and the motion denied.

The Brady defendants failed to timely serve a demand to change venue based on the placement of venue in an improper county and thus were not permitted to seek a change of venue pursuant to CPLR 511(a) (see Kurfis v. Shore Towers Condominium, 48 A.D.3d 300, 852 N.Y.S.2d 76 [1st Dept. 2008] ).

In any event, plaintiff properly placed venue in New York County based upon defendant DM Carpentry Corp.'s certificate of incorporation, filed in 2011, which designated New York County as the location of its corporate office (see CPLR 503[c];  Hill v. Delta Intl. Mach. Corp., 16 A.D.3d 285, 792 N.Y.S.2d 413 [1st Dept. 2005] ).  Although the Brady defendants provided a 2017 printout of information from the Department of State showing that DT Carpentry's initial filing date was 2011 and that its principal executive offices are in Suffolk County, absent any indication that the 2011 certificate of incorporation was ever amended, the residence designated in that certificate controls for venue purposes (see Martirano v. Golden Wood Floors Inc., 137 A.D.3d 612, 613, 27 N.Y.S.3d 555 [1st Dept. 2016];  Krochta v. On Time Delivery Serv., Inc., 62 A.D.3d 579, 580, 879 N.Y.S.2d 428 [1st Dept. 2009] ).

Furthermore, while defendants could seek a discretionary change of venue without complying with the timing requirements of CPLR 511 (see Conway v. Gateway Assoc., 166 A.D.2d 388, 561 N.Y.S.2d 190 [1st Dept. 1990] ), they failed to make any showing justifying such a request.  The Brady defendants failed to set forth the identity and availability of any proposed witnesses, the nature and materiality of their anticipated testimony, and the manner in which they would be inconvenienced by the designated venue (see Leopold v. Goldstein, 283 A.D.2d 319, 726 N.Y.S.2d 15 [1st Dept. 2001] ).