Franklin Traffic Service, Inc. v. Helmer's Fuel & Trucking, Inc.

Order unanimously reversed on the law with costs, and defendant’s motion granted. Memorandum: Plaintiff, a domestic corporation with its principal place of business in Niagara County, chose Erie County as the county of venue (CPLR 509). Defendant’s county of residence for venue purposes is Herkimer County (CPLR 503 [c]). Defendant served a demand for a change of venue to Herkimer County and moved for such relief in Supreme Court, Erie County (CPLR 511). The motion was denied and the court, on its own initiative, transferred the action to Buffalo City Court. Defendant appeals, and we reverse. While plaintiff was free to designate Erie County as the county of venue (CPLR 509), defendant, upon a motion timely made (see, CPLR 511 [b]), was entitled to a change of venue as a matter of right (see, CPLR 503 [a], [c]; 510 [1]; Siegel, NY Prac § 123; cf., Burch v Phillips, 88 AD2d 896, 897). (Appeal from order of Supreme Court, Erie County, Wolfgang, J.—change of venue.) Present—Dillon, P. J., Callahan, Denman, Pine and Lawton, JJ.