Burton v. Ontra Inc.

• Decision Date: 18 March 1996
• Citation: 167 Misc.2d 977,641 N.Y.S.2d 507
• Parties: Vernon J. BURTON, Sr., Plaintiff, v. ONTRA INC., as Successor in Interest to Greenpoint Savings Bank, et al., Defendants.
• Court: New York Supreme Court

Page 507

641 N.Y.S.2d 507

167 Misc.2d 977

Vernon J. BURTON, Sr., Plaintiff, v. ONTRA INC., as Successor in Interest to Greenpoint Savings Bank, et al., Defendants.

Supreme Court, Queens County.

March 18, 1996.

Vernon J. Burton, Sr., plaintiff pro se.

Cullen & Dykman, Brooklyn (Constantine Karides, of counsel), for defendants.

DAVID GOLDSTEIN, Justice.

This is a motion for an order seeking alternate relief, dismissing the complaint as barred by the applicable statute of limitations or, pursuant to CPLR 507, changing the venue to Nassau County, where the real property, the subject of the action, is located.

The action seeks, inter alia, to rescind a mortgage and note relating to real property in Nassau County. Plaintiff, appearing pro se, candidly admits that, inasmuch as the present action does affect possession, use or enjoyment of real property, under the plain terms of CPLR 507, venue should have been placed in the county in which the real property is situated. (See, Avis Rent-A-Car System, Inc. v. Edmin Realty Corp., 209 A.D.2d 656, 619 N.Y.S.2d 334; Slutsky v. Roc-Le Triomphe Assoc., 129 A.D.2d 879, 514 N.Y.S.2d 144; Moschera & Catalano, Inc. v. Advanced Structures Corp., 104 A.D.2d 306, 478 N.Y.S.2d 641.) Unfamiliar with the intracacies of practice and procedure, plaintiff apologizes for not having adhered to CPLR 507 and consents to the transfer of the action to the Supreme Court, Nassau County.

Defendants, however, contend that a change in the place of trial is sought only as alternate relief, should this Court deny their motion to dismiss on statute of limitations grounds. To the contrary, it has long been held that, where venue is improper and a determination has been made to effect a change, principles of comity dictate that all motions be relegated to the transferee court. (See, Rosenblatt v. Sait, 34 A.D.2d 238, 239, 310 N.Y.S.2d 790; see also, Matter of Ryback, 38 A.D.2d 915, 330 N.Y.S.2d 76; Seifert v. McLaughlin, 15 A.D.2d 936, 226 N.Y.S.2d 275; David v. David, 21 N.Y.S.2d 468, affd. 259 App.Div. 905, 20 N.Y.S.2d 1008). As was held in Rosenblatt, supra, "Orderly procedure and a proper regard for comity mandate that once Special Term decided that venue should be changed to a county outside of this Department it should have relegated all motions to the transferee court."

These decisions all concerned a transfer of a case to a county in a different Judicial Department, unlike the situation here, where transfer is sought to another county in the same Department. The precise question does not appear to have been considered in any of the reported decisions. In terms of the underlying principles relating to the recognition or comity to be accorded judicial tribunals, whether the transferee court is within or without the Judicial Department is without dispositive effect. Certainly, it was not the intention of the Rosenblatt Court to accord greater respect and recognition to counties in a different Judicial Department, than to those in the same Department.

In my view, the underlying rationale has far greater application. It relates directly to the recognition and respect to be accorded any tribunal without the county and, to that extent, has jurisdictional underpinnings. Essentially, what lies at the heart of the exercise of jurisdiction is the awareness that, once it is determined that any further assertion of jurisdiction would be improper, and that a change in...