Goldstein v. Roth

Order of the Supreme Court, New York County (Ostrau, J.), entered July 2, 1981, which granted defendants’ motion to change the place of trial from Rockland County to New York County, affirmed, without costs. Plaintiff is a former partner of the defendants in an accounting firm, all parties being CPA’s. They entered into an agreement for partnership dissolution. The partnership had maintained its place of business in Manhattan, where all the books and records relative to this matter are still located and where the agreement was executed. Plaintiff, thereafter, instituted an action in Rockland County against the partnership and the remaining individual member for an accounting and for breach of the agreement. The plaintiff is the only one with any connection to Rockland County. Further, there is another action pending in New York County brought by the defendants against the plaintiff. The defendants served a written demand for a change of venue and, when no response was forthcoming, they made the within motion in New York County, pursuant to which the venue was changed to New York County. The dissent does not question the circumstances which would make New York County the logical place for trial, pursuant to CPLR 510 (subd 3), but raises the technical question as to where the motion should have been made. No affidavit was served by the plaintiff pursuant to CPLR 511 (subd [b]). In Ludlow Valve Mfg. v S. S. Silberblatt, Inc. (14 AD2d 291), where the plaintiff served an affidavit in response to a demand, it was held that such service would preclude the defendant from making the motion in the claimed proper county. The implication, of course, is that where no affidavit is served and the matter ignored, the motion for venue can be made in the county sought. The dissent would require duplicate procedures to no purpose. Concur — Kupferman, J. P., Ross and Fein, JJ.