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Commercial Division Holds That Venue Is Proper Even Though Plaintiff Is Wrong About Defendants' Residence

In 2017, the New York legislature amended CPLR 503(a) to provide for venue in “[(1)] the county in which one of the parties resided when it was commenced; [(2)] the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, [(3)] if none of the parties then resided in the state, in any county designated by the plaintiff.”   Before the amendment, CPLR 503(a) did not provide for venue based on where the events or omissions giving rise to the claim occurred.

In Faustino v. Amin,[1] Justice Andrea Masley of the New York Supreme Court, Commercial Division, analyzed the interesting question of what happens when the plaintiff designates venue based on residence and gets the defendants’ residence wrong, but venue is arguably proper anyway based on the location of the events or omissions at issue.  Justice Masley held that in this scenario, the plaintiff can defeat a venue transfer demand by submitting alternative grounds for the original venue designation in an affidavit. 

The plaintiff in Faustino, Jason Faustino, is the co-manager of Lower East Side fashion retailer Extra Butter.  He sued Extra Butter co-managers and members Ankur Amin and Nikur Amin for theft and misallocation of inventory, alleging venue was proper in New York County, where Extra Butter’s flagship retail store is located.  However, Extra Butter’s articles of incorporation designated Suffolk County as its principal place of business.  For this reason, the defendants sought, pursuant to CPLR 510 (1) and 510(3), to change venue to Nassau County, in an apparent attempt to split the geographic difference.[2] 

Apparently not relishing the prospect of repeated trips to and from Mineola, Faustino responded by filing an affidavit stating that venue in New York County was proper under CPLR 503(a) because the alleged theft and Faustino’s confrontation of the defendants about it both occurred in New York County.[3]

Justice Masley sided with Faustino, holding that venue in New York County was proper under CPLR 503(a) because Faustino’s “stated basis of his venue designation is not residence, but rather, the location of the events that allegedly gave rise to this action,” and the “alleged wrongdoing” that formed the basis for the lawsuit occurred “at Extra Butter’s flagship store in Manhattan.”[4]  Because the complaint adequately alleged the events giving rise to plaintiff’s claims occurred in New York County, Faustino had not forfeited his right to designate venue there even though he incorrectly alleged that the defendants resided there.[5] 

Justice Masley further explained that geographic convenience for the parties was not, on its own, a sufficient reason for transferring venue.  Justice Masley also denied the defendants’ discretionary request to transfer venue because the defendants failed to provide adequate evidence that appearing in New York County would be inconvenient to the witnesses.[6]

Thus, Justice Masley ruled that even where the plaintiff has designated venue based on faulty or incorrect information about the defendants’ residence, venue is proper so long as it is where the key acts or omissions giving rise to plaintiff’s claims occurred. 

By Benjamin F. Jackson and Muhammad U. Faridi

[1] No. 651486/2018, 2018 BL 347107 (Sup. Ct. Sept. 18, 2018).

[2] Id. at *1-2.

[3] Id. at *1.

[4] Id. at *2.

[5] Id.

[6] Id. at *2-3.