PRECHTL v. TRANE INC (2023)

Order, Supreme Court, New York County (David B. Cohen, J.), entered May 18, 2022, which denied defendant's motion to change venue to Delaware County, unanimously affirmed, without costs.

Defendant failed to show its entitlement to a discretionary change of venue under CPLR 510(3).  Even if defendant does not actually have an office in New York County, plaintiff properly placed venue in New York County based on defendant's application for authorization to conduct business, filed in 1939 and designating New York County as the location of its principal office under CPLR 503(c) (see Marte v. Lampert, 212 A.D.3d 560, ––– N.Y.S.3d ––––, 2023 N.Y. Slip Op. 00375 [1st Dept. 2023];  Janis v. Janson Supermarkets LLC, 161 A.D.3d 480, 480, 73 N.Y.S.3d 419 [1st Dept. 2018];  Crucen v. Pepsi–Cola Bottling Co. of N.Y., Inc., 139 A.D.3d 538, 539, 30 N.Y.S.3d 554 [1st Dept. 2016]).

It is of no moment that defendant annexed to its moving papers an affidavit from its associate general counsel averring that about six months before the accident, it filed a biennial statement with the New York Department of State, asserting that defendant's “registered agent in New York” was located in Albany.  In fact, defendant cannot change its residence without changing the designation in its application for authority, and without any indication that the 1939 application was amended, the designation in that application controls (see Marko v. Culinary Inst. of Am., 245 A.D.2d 212, 212, 666 N.Y.S.2d 608 [1st Dept. 1997];  Kochany v. Chrysler Corp., 67 A.D.2d 637, 637–638, 412 N.Y.S.2d 152 [1st Dept. 1979]).

Furthermore, defendant failed to sustain its burden under CPLR 510(3) of identifying any material nonparty witnesses who would be inconvenienced by a trial in New York County rather than Delaware County (see Manzari v. Burrows, 89 A.D.3d 440, 440, 931 N.Y.S.2d 864 [1st Dept. 2011];  Margolis v. United Parcel Serv., Inc., 57 A.D.3d 371, 372, 870 N.Y.S.2d 252 [1st Dept. 2008]).  Indeed, notably lacking is any evidence that defendant contacted the witness to determine whether they are willing to testify on material matters and would be inconvenienced by having to do so in New York County (see Rodriguez–Lebron v. Sunoco, Inc., 18 A.D.3d 275, 276, 795 N.Y.S.2d 26 [1st Dept. 2005];  Martinez v. Dutchess Landaq, Inc., 301 A.D.2d 424, 426, 754 N.Y.S.2d 5 [1st Dept. 2003]).

We have considered defendant's remaining arguments and find them unavailing.