McNamara Realty, Inc. v. Hutchinson

• Citation: 54 Misc.2d 810,283 N.Y.S.2d 422
• Parties: MC NAMARA REALTY, INC., Plaintiff, v. Charles HUTCHINSON and Luella Hutchinson, Defendants. ; Special Term, Albany County
• Decision Date: 04 October 1967
• Court: New York Supreme Court

Page 422

283 N.Y.S.2d 422

54 Misc.2d 810

MC NAMARA REALTY, INC., Plaintiff, v. Charles HUTCHINSON and Luella Hutchinson, Defendants.

Supreme Court, Schenectady County; Special Term, Albany County.

Oct. 4, 1967.

Edward E. Weber, Schenectady (John B. Justice, Albany, of counsel), for defendants, in support of application.

Earl M. Bucci, Schenectady, for plaintiff, in opposition.

LAWRENCE H. COOKE, Justice.

In this action for the recovery of real estate commissions, defendants move, pursuant to CPLR 503(a), 507, 510 and 511, to change the place of trial from Schenectady to Albany County on the grounds that plaintiff has an office in the latter, that defendants reside therein and that 'the real property, which is the subject of this action,' is situated therein.

The rule regarding domestic corporations codified by CPLR 503(c) is that for venue purposes a domestic corporation is deemed a resident of the county in whch its principal office is located and this means the county designated in its certificate of incorporation as the place where the office of the corporation is to be located (Hoffman v. Oxford Developments, 9 A.D.2d 937, 195 N.Y.S.2d 484; 2 Weinstein-Korn-Miller, New York Civil Practice, 503.05). The mere fact that a corporation has an office in a county other than that designated in its certificate of incorporation does not change its residence for the purpose of legal procedure (General Precision, Inc. v. Ametek, Inc., 24 A.D.2d 757, 263 N.Y.S.2d 470; 1 White, New York Corporations (12th ed.), p. 357; cf. Yonkers Raceway v. Nat. Union Fire Ins. Co., 9 Misc.2d 412, 170 N.Y.S.2d 205, affd. 6 A.D.2d 846, 176 N.Y.S.2d 241, affd. 6 N.Y.2d 756, 186 N.Y.S.2d 656, 159 N.E.2d 203).

While CPLR 507 provides that the place of trial of an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated, the line of demarcation in applying the statutory provision is whether the action Involves title to realty or Affects it, for it is only as to the latter class of actions that the statute extends (Craig v. Clifton Springs Country Club, 26 A.D.2d 903, 274 N.Y.S.2d 455; Grace v. Deepdale, Inc., 3 A.D.2d 397, 398, 160 N.Y.S.2d 598, 600; Nassau Hotel Co. v. Barnett, 164 App.Div. 203, 205, 149 N.Y.S. 645, 647). It does not apply to an action at law to recover damages for the breach of a contract for the payment of real estate commissions, although that contract relates to real property, for in such a case the judgment which ...