ALVAREZ v. Liberty Lines Transit, Inc., et al., Defendants–Appellants.

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

Laurie ALVAREZ, Plaintiff–Respondent, v. METROPOLITAN TRANSPORTATION COMPANY, etc., Defendant, Liberty Lines Transit, Inc., et al., Defendants–Appellants.

Decided: November 17, 2011

GONZALEZ, P.J., TOM, CATTERSON, RICHTER, ROMÁN, JJ. Lifflander & Reich LLP, New York (Kent B. Dolan of counsel), for appellants. Law Offices of Ryan S. Goldstein, PLLC, Bronx (Ryan S. Goldstein of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 12, 2010, which, in an action for personal injuries, denied the motion of defendants-appellants to change venue from Bronx County to Westchester County, unanimously affirmed, without costs.

CPLR 504(1) would ordinarily place venue in Westchester County (see Powers v. East Hudson Parkway Auth., 75 A.D.2d 776, 428 N.Y.S.2d 233 [1980];  see also Chitayat v. Princeton Restoration Corp., 289 A.D.2d 102, 735 N.Y.S.2d 24 [2001] ).   However, when plaintiff named the Metropolitan Transportation Company as a defendant, a conflict arose between CPLR 504(1) and CPLR 505(a).   Thus, the court had the discretion to choose a venue proper for at least one of the parties or claims (CPLR 502).   The court did not abuse its discretion when it left venue in Bronx County, where the motor vehicle accident occurred and where defendant bus driver resides.   We note that should the record develop sufficiently to establish that the Metropolitan Transportation Company was improperly named as a defendant, the remaining defendants may still move under CPLR 504(1) for a change of venue.