National Freight, Inc. v. Roberts & Grancelli, Inc.

OPINION OF THE COURT Bentley Kassal, J. The motion for change of venue pursuant to CPLR 510 (subd 1) is denied without prejudice to defendant moving pursuant to CPLR 510 (subd 3) if so advised. Plaintiff, in part, relies on the case of New York Cent. R. R. Co. v Lefkowitz (17 AD2d 638, affd 12 NY2d 305) for the proposition that a foreign railroad corporation has residence, for venue purposes, in each county in which it operates. That case, however, interpreted a prior provision of the Civil Practice Act which broadly defined the residence of corporate parties. That holding, as much of the other case law which was developed with respect to foreign corporations under the Civil Practice act, has now been expressly abrogated by CPLR 503 (subd [c]). (See McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 503 p 14-15.) CPLR 503 (subd [c]) now provides that a foreign corporation "shall be deemed a resident of the county in which its princi [852] pal office is located; except that such a corporation, if a * * * common carrier, shall also be deemed a resident of the county where the cause of action arose.” The plaintiff, as an authorized foreign corporation, is a "resident” of only one county, the county designated in its application for authority to do business filed with the Secretary of State. (General Precision v Ametek, Inc., 45 Misc 2d 451, affd 24 AD2d 757.) Plaintiff so designated New York County and, accordingly, venue may be properly placed here. The court notes that plaintiff’s own affirmation in opposition states that plaintiff "does not maintain a place of business in New York County” and further notes that the complaint was verified by plaintiff’s attorneys because "Plaintiff does not have a place of business in New York County.” Accordingly, a motion pursuant to CPLR 510 (subd 3) may be in order. However, the present papers are conclusory and insufficient to warrant such relief at this stage. (See, generally, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 510, pp 74-75.)