Arnold Constable Corp. v. Staten Island Mall
| Decision Date | 27 February 1978 |
| Parties | ARNOLD CONSTABLE CORPORATION et al., Respondents, v. STATEN ISLAND MALL et al., Defendants, and Chase Manhattan Mortgage and Realty Trust, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Wien, Lane & Malkin, New York City (Robert A. Machleder, New York City, of counsel), for appellant.
Lynton, Klein, Opton & Saslow, New York City (Edward L. Skolnik, New York City, of counsel), for respondents.
Before DAMIANI, J. P., and SUOZZI, GULOTTA and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
In an action inter alia to rescind a lease of 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 A.D.2d 839, 840, 388 N.Y.S.2d 578, 580).
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 A.D.2d 956, 201 N.Y.S.2d 749; Taller & Cooper v. Rand, 286 App.Div. 1096, 145 N.Y.S.2d 557; Geneva Trust Co. v. Boston & Maine R. R., 212 App.Div. 695, 209 N.Y.S.2d 557; 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,...
To continue reading
Request your trial
-
Wager v. Pelham Union Free Sch. Dist.
...of witnesses ( see GAM Prop. Corp. v. Sorrento Lactalis, Inc., 41 A.D.3d at 646, 838 N.Y.S.2d 633, citing Arnold Constable Corp. v. Staten Is. Mall, 61 A.D.2d 826, 402 N.Y.S.2d 431). Nevertheless, GAM Prop. Corp. and two other cases relied upon by the plaintiffs, Levertov v. Congregation Ye......
-
Port Bay Associates v. Soundview Shopping Center
...one lives in Florida. The convenience of nonresidents is of subordinate concern under the statute (see, Arnold Constable Corp. v. Staten Is. Mall, 61 A.D.2d 826, 827, 402 N.Y.S.2d 431). More importantly, five of the six witnesses had a current or former contractual relationship with plainti......
-
Avis Rent-A-Car System, Inc. v. Edmin Realty Corp.
...Corp., 104 A.D.2d 306, 478 N.Y.S.2d 641; Spellman Food Servs. v. Partrick, 90 A.D.2d 791, 455 N.Y.S.2d 398; Arnold Constable Corp. v. Staten Is. Mall, 61 A.D.2d 826, 402 N.Y.S.2d 431; see also, 2 Weinstein-Korn-Miller, NY Civ Prac p 507.03--507.05). Accordingly, under the circumstances pres......
-
Moschera & Catalano, Inc. v. Advanced Structures Corp.
...have been granted (see Spellman Food Services, Inc. v. Partrick, 90 A.D.2d 791, 455 N.Y.S.2d 398; Arnold Constable Corporation v. Staten Island Mall, 61 A.D.2d 826, 402 N.Y.S.2d 431). We have observed in the past that, "some cases have held CPLR 507 does not preclude trial of an action affe......