Goercke v. Kyun

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered January 20, 2000, which denied defendant Kyun’s motion to change venue from New York County to Westchester County and granted plaintiffs cross motion to retain venue in New York County, unanimously affirmed, without costs. When plaintiff chose an improper venue, she forfeited her right to select venue initially (see, Berberich v York Scaffold Equip. Corp., 177 AD2d 451) and, in the absence of plaintiffs cross motion, defendant Kyun would have been entitled to change venue to Westchester County, where plaintiff resides (see, Kielczewski v Pinnacle Restoration Corp., 226 AD2d 211, 212). However, plaintiffs initial choice of an improper venue did not preclude her cross motion for- a change of venue pursuant to CPLR 510 (3) addressed to the court’s discretion (see, Carrasco v Cablevision Sys. Corp., 248 AD2d 122, 123), and when plaintiff showed that the accident occurred in New York County and that material witnesses would be inconvenienced by a change of venue from New York County to Westchester County, the venue sought by defendant Kyun, it was incumbent upon defendant Kyun to set forth “countervailing conveniences justifying retention in a county other than where the cause of action arose” (Stonestreet v General Motors Corp., 201 AD2d 350). The sole convenience set forth by defendant Kyun is plaintiffs residence in Westchester County, a factor which is not entitled to great weight in any case (see, Quiles v Orsi, 182 AD2d 499), but particularly not here where plaintiff seeks to forgo trial in her county of residence. Thus, while venue in Westchester County may be proper, the court properly exercised its discretion in denying defendant’s motion, and granting plaintiffs cross motion to retain venue in New York County (see, Morales v City of New York, 189 AD2d 581; Clinton v Griffin, 176 AD2d 501). Concur — Rosenberger, J, P., Tom, Mazzarelli, Andrias and Saxe, JJ.