NEW DECISION -- VENUE

Tribeca Med., P.C. v Dollar Rent A Car, 2008 NY Slip Op 50812(U) (Civil Court Of The City Of New York, Richmond County)

By separate motions, defendants argue that venue is improper in Richmond County pursuant to New York Civil Court Act ("NYCCA") §305(a), which provides in part that if "the plaintiff is an assignee of the cause of action, the original owner of the cause of action shall be deemed the plaintiff for the purpose of determining proper venue." Defendants assert that the assignors have no connection with the County of Richmond as two of them reside in Kings County and one resides in Queens County. Venue in Richmond County, therefore, is improper "ab initio" and venue should be moved to Kings County and Queens County where the three assignors live. Defendants also hypothesize that plaintiffs chose Richmond County for their own convenience since both defendant Dollar Rent A Car and defendant Dollar Rent A Car, Citiwide Auto Leasing maintain their places of business in Brooklyn, as set forth in plaintiffs' summons (each attached to the three separate motions as Exhibit "A"). Finally, defendants assert that plaintiffs have forfeited the right to select venue in an action by choosing an improper venue in the first instance.

Defendants' argument as to why venue should be changed is incorrect. The issue presented by this case is not where the assignor resides for purposes of establishing the proper venue for plaintiff, but rather whether sufficient evidence has been produced that Dollar Rent A Car and Dollar Rent A Car, City Wide Auto Leasing "transact business" in Richmond County.

Pursuant to Civil Court Act ("CCA") §305(b), "a corporation ...shall be deemed a resident of any county wherein it transacts business, keeps an office, has an agency or is established by law." In the leading case of Mingmen Acupuncture v. American Insurance. 183 Misc 2d 270 (Civil Ct., Bronx Co. 1999), the court set forth that pursuant to article 3 of the CCA, venue of a proceeding is initially chosen by the plaintiff based upon the residence of one of the parties (CCA 310, 305), and that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed" Id at 273. Furthermore, upon a motion to change said venue, defendant bears the burden of establishing that "plaintiff's choice of forum is not appropriate or that other factors and circumstances require that venue be changed" Id at 274 . See Islamic Republic v. Pahlavi, 62 NY2d 474, 479 (1985).

In Rung, supra (interpreting CPLR §302), the court found that the defendant had transacted business in New York because it "engaged in purposeful activity in New York by regularly corresponding by mail or telephone with plaintiff's insurance company in New York." 139 AD2d at 915 In Mingman, the court found the following evidence to support the contention that the defendant regularly issued policies to and transacted business with residents in Bronx County: plaintiff identified five insurance policies with name, Bronx address and policy number. Furthermore, the defendant did not controvert either plaintiff's proof or its broader allegation that defendant regularly engages in all the other ancillary activities necessary to transact such business: " solicitation of Bronx residents, issuance of insurance policies, collection of premiums, forwarding of invoices and other correspondence." 183 Misc [*4]2d at 272. See also, Andrew Carothers v. Liberty Mutual. 13 Misc.1212A, 824 N.Y.S. 2d 753(Civil Ct. Richmond Co. 2006 ) (defendants' submissions that they do not have any claims, sales or offices in Richmond County did not foreclose the very distinct possibility' that defendants issued insurance policies covering Richmond County residents" and that they engaged in purposeful activity by regularly corresponding by mail or telephone with its policy holders in Richmond County by delivering insurance policies, sending invoices and collecting premiums from them); Neurologic Serv. v. American Transit Insurance Co., 183 Misc 2d 496 (Civil Ct., Bronx Co. 1999) (none of assignors were Bronx residents, but issuance of insurance policies to Bronx residents is sufficient transaction of business to qualify the defendant as a Bronx resident for purposes of venue).

Defendant has not specifically addressed this standard in claiming that venue should not rest in Richmond County. Plaintiffs, on the other hand, have merely proffered one page from the Verizon's Staten Island Yellow Pages which lists a 1- 800 number for Dollar Rent A Car. Based upon the evidence submitted it is impossible to assess whether defendants transact business in Richmond. At this point, the court denies the motion to change venue based upon the precedent that defendants bear the burden of establishing that "plaintiffs' choice of forum is not appropriate". Defendants may, however, renew this motion upon a showing of evidence that addresses the aforementioned standards.