CINTAS CORPORATION v. RALPH PONTIAC HONDA

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Supreme Court, Appellate Division, Fourth Department, New York.

CINTAS CORPORATION, Respondent, v. RALPH PONTIAC-HONDA, Appellant.

Decided: December 31, 1998

Present:  DENMAN, P.J., GREEN, HAYES, CALLAHAN and BALIO, JJ. Bilgore, Reich, Levine by Bernard Levine, Rochester, for Defendant-Appellant. Lo Tempio & Brown, P.C. by Patrick Brown, Buffalo, for Plaintiff-Respondent.

Supreme Court erred in denying defendant's motion for a change of venue.   Plaintiff, a foreign corporation licensed to transact business in New York, commenced this action seeking damages for breach of contract.   Plaintiff designated Erie County as the place of trial based upon its maintenance of an office in that county.   That designation was improper.

 As a foreign corporation, plaintiff resides in the county where its principal office, as designated in its authority to do business, is located (see, CPLR 503[c];  Searle v. Suburban Propane Div. of Quantum Chem. Corp., 229 A.D.2d 988, 989, 645 N.Y.S.2d 205;  Collins v. Trigen Energy Corp., 210 A.D.2d 283, 620 N.Y.S.2d 9).   In its application for authority to transact business in New York, plaintiff indicated that its principal office would be located in Orange County.  “A corporation is a resident of the county in which its principal office is located, despite its maintenance of an office or facility in another county” (Nixon v. Federated Dept. Stores, 170 A.D.2d 659, 567 N.Y.S.2d 80;  see, Papadakis v. Command Bus Co., 91 A.D.2d 657, 658, 457 N.Y.S.2d 105).   By designating an improper county for venue, plaintiff forfeited its right to designate the place of trial (see, Searle v Suburban Propane Div. of Quantum Chem. Corp., supra, at 989-990, 645 N.Y.S.2d 205;  Scott v. Otis El. Co., 160 A.D.2d 519, 554 N.Y.S.2d 174).

 In opposing the motion for a change of venue, plaintiff submitted an affidavit asserting that venue should be retained in Erie County for the convenience of witnesses.   The court concluded that the convenience of a principal witness and the interest of justice warranted retaining venue in Erie County.   In the absence of a cross motion by plaintiff, however, the court should not have considered the request of plaintiff in its opposing affidavit (see, Pitegoff v. Lucia, 97 A.D.2d 896, 896-897, 470 N.Y.S.2d 461).   In any event, even if plaintiff had properly cross-moved for a discretionary retention of venue in Erie County based upon the convenience of material witnesses and promoting the ends of justice (see, CPLR 510[3] ), plaintiff failed to make the required detailed evidentiary showing.   Plaintiff failed to set forth the testimony it expected the proposed witness to provide and how the witness would be inconvenienced in the event a change of venue was granted, and failed to state that the witness was in fact willing to testify (see, Roth v. Meyer, 248 A.D.2d 1001, 670 N.Y.S.2d 149;  Pillittere v. Ted and Ann Tours, 244 A.D.2d 1006, 668 N.Y.S.2d 969;  O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 172-173, 622 N.Y.S.2d 284).   Thus, it was an improvident exercise of discretion for the court to grant plaintiff relief (see, Roth v. Meyer, supra ).

Order unanimously reversed on the law with costs and motion granted.

MEMORANDUM: