Chiques v. Sanso

• Decision Date: 09 November 1972
• Citation: 339 N.Y.S.2d 394,72 Misc.2d 376
• Parties: Michael CHIQUES and Ann M. Wright, Plaintiffs, v. Vincent SANSO and Services Truck Renting Corp., Defendants.
• Court: New York Supreme Court

Page 394

339 N.Y.S.2d 394

72 Misc.2d 376

Michael CHIQUES and Ann M. Wright, Plaintiffs, v. Vincent SANSO and Services Truck Renting Corp., Defendants.

Supreme Court, Westchester County.

Nov. 9, 1972.

Esterman & Esterman, New York City, for plaintiffs.

Benjamin Purvin, Lake Success, for defendants.

JOSEPH F. GAGLIARDI, Justice.

In this negligence action plaintiffs have applied for a general preference. The complaint reveals that plaintiffs were the driver and passenger of an undescribed motor vehicle, defendant Sanso was the operator of a certain truck owned by defendant Services Truck Renting Corp. bearing a New Jersey registration and that a collision between the vehicles occurred in New York County on August 26, 1970. The summons indicates that plaintiffs reside in Nassau and Dutchess Counties and that defendant Sanso also resides in Nassau County. The summons further indicates that the defendant corporation is located at a nonexistent address in New York State. Upon inquiry by the Court it was ascertained that the defendant corporation is in fact licensed under the laws of the State of New Jersey. The note of issue claims a general preference on the ground that the injuries are permanent and severe.

While a reading of the medical reports and bills of particulars indicates that the claimed injuries are probably not of such nature as to justify the grant of a general preference the Court declines to adjudicate the within matter on that ground because the primary issue raised on the face of the papers is one of venue. It has been held that where the Court grants a change in venue it is improper for it to pass upon corollary motions (Rosenblatt v. Sait, 34 A.D.2d 238, 310 N.Y.S.2d 790). For reasons to be discussed hereafter, it is inappropriate for this Court to pass upon the medical aspect of the case.

In actions for personal injuries and wrongful death litigants in the First and Second Judicial Departments must obtain orders of general preference to insure that their cases will be tried within a reasonable period of time in the Supreme Courts of this state (Haas v. Scholl, 68 Misc.2d 197, 199, 325 N.Y.S.2d 844, 846--847). General preferences in such cases are granted on a showing that the action seeks to recover damages for personal injuries 'resulting in permanent or protracted disability' (22 NYCRR 674.1 (2nd Dept.); id. 660.9(c) (New York and Bronx Counties, Supreme Court)). In other words, the purpose of the quoted prerequisite 'is to advance for trial those cases pending in the Supreme Court in which the likelihood of recovery, if plaintiff is successful, will approximate or exceed the monetary jurisdiction of courts of limited monetary jurisdiction in the county' (Plachte v. Bancroft, Inc., 3 A.D.2d 437, 441, 161 N.Y.S.2d 892, 896). Additionally, general preferences are granted on other than monetary jurisdictional grounds where, for example, a court of inferior jurisdiction lacks power to enter judgment agaisnt a particular defendant or where the plaintiff cannot effect service of process upon a defendant within the territorial limits of the inferior court (Martirano v. Valger, 19 A.D.2d 544, 240 N.Y.S.2d 792; cf. Campoli v. Grand Union Co., 58 Misc.2d 7, 294 N.Y.S.2d 295).

Prior to March 1, 1962 when the Appellate Division, Second Department enacted a Special Rule regulating the granting of preferences, local court rules provided and case law had held that a general preference would be denied where none of the parties were residents of the county (Fuchs v. Nation Wide Air Transportation, Inc., 274 App.Div. 808, 79 N.Y.S.2d 743; Williams v. A. Hollander & Son, Inc., 249 App.Div. 784, 292 N.Y.S. 228; Burton v. Long Island Railroad, Sup., 89 N.Y.S.2d 583 (McNally, J.)); (see Fromm v. Herbert Silk Co., 246 App.Div. 537, 282 N.Y.S. 490; cf. Conroy v. Erie R.R. Co., 188 Misc. 59, 66 N.Y.S.2d 433). The general rule applicable was that one of the parties had to be a resident of the county before a preference would issue (Carnes v. Zanghi, 4 Misc.2d 815, 157 N.Y.S.2d 331). After enactment of the CPLR the former Special Rule, which rescinded local court rules in point, was carried forward without change in substance (7 Carmody-Wait 2d, Calendar Practice; Note of Issue, § 50.37 p. 626 (N. 19)) and is found in subdivision (a) of section 674.1 of the Rules and Regulations of the Appellate Division, Second Department (22 NYCRR). The rule provides in pertinent part that a general preference may be granted:

'provided:

(a) That the venue of the action was properly laid in the county in which it is pending, within the requirements of the CPLR' The question thus arises as to whether venue is properly laid in Westchester County, ^* and, if not, whether a court in any proper county could entertain the case. Prior to resolving these issues it is noteworthy that the defendants have not opposed this application nor have they requested a change of venue. The present statutory scheme pertaining to venue in the Supreme Court precludes the Court from changing the place of trial sua sponte (CPLR 510; Powers v. Del. & Hud. R. Corp., 15 A.D.2d 620, 222 N.Y.S.2d 362; Hull v. Trainor, 233 App.Div. 350, 252 N.Y.S. 845; Phillips v. Tietjen, 108 App.Div. 9, 95 N.Y.S. 469; Reliable Displays v. Maro Inds., 67 Misc.2d 747, 325 N.Y.S.2d 616). Interestingly, the New York City Civil Court is granted statutory power to change venue on its own motion (N.Y. City Civ.Ct.Act. § 306; McKinney's Consol.Laws of N.Y., Book 29A (Judiciary Law)); and by court rule its clerk has been instructed not to accept for filing summonses which reveal that the action has been commenced in the wrong county (22 NYCRR 2900.3; Towers v. Long Is. Props., 67 Misc.2d 1062, 325 N.Y.S.2d 605). Were such power conferred upon the Supreme Court, matters such as the one at bar would be resolved with dispatch. In any event the Court is of the opinion that it is not powerless to act in a matter where neither the parties nor the cause of action have any nexus with this county (Carbide & Carbon Chem. Co. v. Northwest Ext. Co., 207 Misc. 548, 139 N.Y.S.2d 480; cf. Application of Motor Vehicle Accident Indem. Corp., Sup., 224 N.Y.S.2d 907).

To obtain a general preference the parties must comply with statute and court rules (Spiegler v. School Dist., New Rochelle, 36 Misc.2d 312, 232 N.Y.S.2d 597; Bailey v. Smith, 27 Misc.2d 168, 212 N.Y.S.2d 641 (Hopkins, J.)). The Appellate Divisions are authorized to enact rules regulating preferences in civil actions (Judiciary Law § 85). We have ascertained that the rule in point (22 NYCRR 674.1(a)) has a venue requirement and the primary issue herein is whether venue is properly in Westchester County.

In the first instance venue is properly laid in a county where one of the parties resides and, if none of the parties reside in the State, in any county designated by the plaintiff (CPLR 503(a)). Where the county selected by plaintiff is improper, defendants must serve a written demand, no later than service of their answer, that a different county is proper (CPLR 511(a), (b)). Failure to make a demand within the time specified by the CPLR constitutes a waiver to the extent that a change of venue may not be obtained as a matter of right; but the motion is then addressed to the discretion of the court (Reichenbach v. Corn Exchange Bank Trust Co., 249 App.Div. 539, 292 N.Y.S. 732; 2 Weinstein-Korn-Miller, N.Y.Civ.Proc., 510.06, 510.05). Indeed, defendants In futuro may present a motion to change venue rpedicated upon the other grounds specified in the statute (CPLR 510(2), (3)). Furthermore, even plaintiffs herein may subsequently seek a change in venue although the action was commenced in an improper county (Kenford Co., Inc. v. County of Erie, 38 A.D.2d 781, 328 N.Y.S.2d 69).

It is clear that Westchester County is an 'improper' county for the venue of this action within the meaning of the CPLR unless plaintiffs can establish a jurisdictional requirement (other than monetary) for commencement of the action in the Supreme Court of this county. Defendants' failure to move for a change of venue and the absence of opposition to this application are not grounds for granting the relief sought (Carbide & Carbon Chem. Co. v. Northwest Ext. Co., 207 Misc. 548, 139 N.Y.S.2d 480; cf. F.H.S. Operating Co., Inc. v. National Fire Ins. Co. of Hartford, 286 App.Div. 1026, 145 N.Y.S.2d 240; Bowers v. Aaron Machinery Co., 28 Misc.2d 983, 220 N.Y.S.2d 582). The issue narrows down to one of jurisdiction within the confines of the venue-jurisdiction-preference dichotomy.

It has been held that the venue requirement in the Appellate Division preference rule is not applicable where the action must be commenced in the Supreme Court for jurisdictional purposes (Martirano v. Valger, 19 A.D.2d 544, 240 N.Y.S.2d 792; Schott v. Hertz Corp., 19 A.D.2d 643, 241 N.Y.S.2d 283; Slater v. Margolin, 13 A.D.2d 450, 211 N.Y.S.2d 211; Yates v. John J. Casale, Inc., Sup., 89 N.Y.S.2d 583 (McNally, J.)). This principle is too broadly phrased and is to be limited to situations...