BELLAVIA v. HOPPENSTEIN (2026)

DECISION & ORDER

In an action to recover damages for defamation and for injunctive relief, the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated February 20, 2025, and (2) an order of the same court dated April 1, 2025.  The order dated February 20, 2025, insofar as appealed from, denied that branch of the defendant's motion which was pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to Delaware County.  The order dated April 1, 2025, granted the plaintiffs' motion pursuant to CPLR 3211(a) to dismiss the defendant's counterclaims.

ORDERED that the order dated February 20, 2025, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated April 1, 2025, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiffs commenced this action against the defendant to recover damages for defamation and for injunctive relief in the Supreme Court, Suffolk County.  The defendant interposed an answer in which he asserted three counterclaims.  Two of the counterclaims, which were asserted against both plaintiffs, alleged abuse of process and libel.  The defendant also asserted a counterclaim for injunctive relief against the plaintiff Leonard A. Bellavia.  In that counterclaim, the defendant sought that Bellavia “be ordered to use his position as member and owner of Roxbury Garage, LLC to have Roxbury Garage, LLC fix the leak coming into the premises and adjacent utility room and remedy the mold situation.”  The allegations contained in the complaint and the answer generally concerned the defendant's occupation of a certain premises located in Delaware County pursuant to a lease agreement between the defendant and Roxbury Garage, LLC (hereinafter the landlord).  Bellavia is a member of the landlord, and Bellavia and the plaintiff David Cohen represented the landlord as counsel in connection with the landlord's dealings with the defendant as a tenant of the premises.

In November 2024, the defendant moved, inter alia, pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to Delaware County.  In an order dated February 20, 2025, the Supreme Court, among other things, denied that branch of the defendant's motion.  In March 2025, the plaintiffs moved pursuant to CPLR 3211(a) to dismiss the defendant's counterclaims.  In support of the plaintiffs' motion, Bellavia submitted an affirmation in which he identified himself as an “an attorney admitted to the Bar of the State of New York” and affirmed the truth of the statements made therein “under penalties of perjury.”  In an order dated April 1, 2025, the court granted the plaintiffs' motion.  The defendant appeals.

CPLR 503(a) provides, in pertinent part, that “[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced;  [or] the county in which a substantial part of the events or omissions giving rise to the claim occurred.”  CPLR 510(3) provides that, upon motion, the court may change the venue of an action where “the convenience of material witnesses and the ends of justice will be promoted by the change.”  “A party moving to change venue pursuant to CPLR 510(3) must provide information about the prospective witnesses, including, but not limited to, their names and addresses, disclose the facts about which the proposed witnesses will testify at the trial, represent that the prospective witnesses are willing to testify, and state that the witnesses would be inconvenienced if the venue is not changed” (Bikel v Bakertown Realty Group, Inc., 157 AD3d 924, 925;  see Landa v. Poloncarz, 215 AD3d 739, 741).  The situs of a plaintiff's injury may provide a basis for a discretionary change of venue in that, “things being equal, a transitory action should be tried in the county where the cause of action arose” (Black v. Fraken Bldrs., Inc., 191 AD3d 498, 498 [internal quotation marks omitted];  see Ryan v. Great Atl. & Pac. Tea Co., 30 A.D.2d 549, 549).

Here, the defendant offered only conclusory statements that the prospective witnesses would be inconvenienced and failed to establish the manner or extent to which those witnesses would be inconvenienced (see Gorodetsky v Bridgewater Wholesalers, Inc., 161 AD3d 722, 723;  Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d 927, 928).  Moreover, while the statements alleged to be defamatory may have arisen out of a dispute involving real property located in Delaware County and made solely to an individual who resided and worked in Delaware County, the plaintiffs lived in Suffolk County, maintained a law office in Suffolk County, and allegedly suffered harm to their reputation and business as a result of the statements.

Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to Delaware County.

We agree with the defendant that, in deciding the plaintiffs' motion pursuant to CPLR 3211(a) to dismiss the counterclaims, the Supreme Court improperly considered facts that were only asserted in Bellavia's affirmation.  CPLR 2106(a) provides that “[t]he statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury ․ may be used in an action in New York in lieu of and with the same force and effect as an affidavit.”  At the time the plaintiffs' motion to dismiss the defendant's counterclaims them was filed, CPLR 2106 provided, as relevant here, “[s]uch affirmation shall be in substantially the following form:  I affirm this _ day of _, _, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law” (id., as amended by L 2023, ch 559, § 1 [eff Jan. 1, 2024, to Nov. 20, 2025] ).  Under the version of CPLR 2106 in effect at the time the plaintiffs' motion was filed, the submission of an affirmation, rather than an affidavit, of a party was permissible (see id., as amended by L 2023, ch 559, § 1 [eff Jan. 1, 2024, to Nov. 20, 2025];  Matter of Sweet v. Fonvil, 227 AD3d 849, 851).  However, the oath contained in Bellavia's affirmation, which did not refer to the “laws of New York” or the potential penalties for perjury, was not in substantially the same form as required by former CPLR 2106 (see Matter of Grandsard v. Hutchison, 227 AD3d 491, affg 2024 WL 1957086, 2024 N.Y. Misc. LEXIS 72914 [Sup Ct, N.Y. County, Latin, J., index No. 153605/24] ).

Pursuant to CPLR 2001, “[a]t any stage of an action, ․ the court may permit a mistake, omission, defect or irregularity ․ to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.”  Here, however, the plaintiffs failed to correct their error by submitting an affirmation in reply that conformed to CPLR 2106 (see Kallo v. Kane St. Synagogue, 241 AD3d 522, 523–524).  Nor could the defect have been disregarded without causing prejudice to the defendant (cf.  Williams v. Light, 196 AD3d 668, 669–670).

However, to the extent that the Supreme Court considered those portions of Bellavia's affirmation that asserted legal arguments not based upon the facts only asserted in the affirmation, the court properly disregarded any defect or irregularity in the form by which the plaintiffs advanced their legal arguments pursuant to CPLR 3211(a) (see Matter of County of Essex [Golden Ring Intl., Inc.], 195 AD3d 1187, 1188).

In considering a motion pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275).  “When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate” (id.).

Here, the plaintiffs' submissions established that the defendant did not have a counterclaim for abuse of process, since “the mere institution of a civil action by summons and complaint is not legally considered such process as is capable of being abused” (Hoppenstein v. Zemek, 62 A.D.2d 979, 980).  The plaintiffs further demonstrated that the defendant did not have a cause of action for injunctive relief against Bellavia, since that counterclaim was improperly asserted against Bellavia in his capacity as a member of the landlord (see generally Whitfield v Law Enforcement Empls.  Benevolent Assn., 237 AD3d 1139, 1142–1143).  Further, the plaintiffs established that the defendant did not have a counterclaim for libel, since the allegedly defamatory statements were nonactionable opinion (see Tsamasiros v. Jones, 232 AD3d 816, 818).

Accordingly, the Supreme Court properly granted the plaintiffs' motion pursuant to CPLR 3211(a) to dismiss the defendant's counterclaims.

The defendant's remaining contentions are without merit.

BARROS, J.P., WAN, MCCORMACK and HOM, JJ., concur.