Arnold Constable Corp. v. Staten Island Mall

In an action, inter alia, to rescind a lease of [827] premises located in the Staten Island Mall, defendant Chase Manhattan Mortgage and Realty Trust appeals from an order of the Supreme Court, Richmond County, dated June 30, 1977, which (1) denied its motion to change the place of trial from New York County to Richmond County and (2) granted plaintiffs’ cross motion which, in effect, sought to retain venue in New York County, where the action was commenced. Order reversed, on the law, with $50 costs and disbursements, motion granted and cross motion denied. The nature of the action being such that the judgment "would affect the title to, or the possession, use or enjoyment of, real property”, the proper place for trial is the county in which the realty is located, to wit, Richmond County (see CPLR 507; Inspiration Enterprises v Inland Credit Corp., 54 AD2d 839, 840). Moreover, assuming, arguendo, that venue could properly be retained in New York County to promote the convenience of material witnesses and the ends of justice (see CPLR 510, subd 3), plaintiffs herein have failed to make a sufficient showing to warrant such an exercise of discretion. The only two witnesses whose "convenience” would be served are (1) an officer of the plaintiff and (2) a nonresident third party. The convenience of anticipated witnesses who are nonresidents of the State, or employees of a party to the action, is entitled to subordinate consideration only (see Gerber v B. C. R. Hotel Corp., 10 AD2d 956; Taller & Cooper v Rand, 286 App Div 1096; Geneva Trust Co. v Boston & Maine R. R., 212 App Div 695; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 510:3, pp 74-75). Furthermore, it may be noted that 43 other tenants with leases in the same mall have commenced similar actions and that all of these actions, save two, are presently pending in the Supreme Court, Richmond County. The remaining two actions are pending in the United States District Courts for the Southern and Eastern Districts of New York. Damiani, J. P., Suozzi, Gulotta and O’Connor, JJ., concur.