Venue: The Convenience of Witnesses Trumps A School District’s Home County

Xhika v Rocky Point Union Free Sch. Dist.,

___ AD3d ___, 2015 NY Slip Op 00874 [2d Dept., 2015]

Even a specific statutory direction as to venue can be overridden by the convenience of material witnesses, but only when a sufficient showing is actually made. This case is an example of a movant who got it right.

The required showing on a motion for a change of venue based on the convenience of witnesses is well established. There are four elements: First, the names, addresses and occupations of the prospective witnesses must be stated. Second, the facts to which the proposed witnesses will testify at the trial must be stated, so that the court may judge whether the proposed evidence of the witnesses is material and necessary. Third, it must be shown that the witnesses for whose convenience a change of venue is sought are in fact willing to testify. Fourth, there must be a showing as to how the witnesses in question would in fact be inconvenienced in the event a change of venue were not granted. (O’Brien v Vassar Bros. Hosp., 207 AD2d 169 [2d Dept., 1995].

Where the showing is not made the motion must be denied, even in a case where the facts might be thought to argue for themselves. In Rodriguez-Lebron v Sunoco, Inc., 18 A.D.3d 275 [1st Dept., 2005], for example, the plaintiff was an Ulster County resident, the slip-and-fall accident occurred at a gas station in Orange County, and the only connection to the New York County venue was the principal office of the defendant. The only proof on the motion, however, was defense counsel’s hearsay affirmation. Without proper proof, the order changing venue was reversed.

The defendant in this personal-injury case is a school district. School districts normally enjoy the specific direction of CPLR 504 that actions against them shall be tried in the county in which the district is located, here Suffolk County. Plaintiff commenced the action in Suffolk County, and then moved for a change of venue to Kings County based on the convenience of witnesses. Plaintiff’s papers in support of the motion hit all the required elements, including the affirmations of his treating physicians, whose practices were in Kings County; and an eyewitness, a Kings County resident. The witnesses stated the facts to which they would testify, and stated that they would be inconvenienced by a Suffolk County trial. It has been held (although not brought up here) that the convenience of the plaintiff’s treating physicians is a “strong factor” in determining venue (Rich v O’Connor, 212 AD2d 767 [2d Dept., 1995]). On the other side, the defendant school district did not claim that its employees actually witnessed the accident or that its trial witnesses would be inconvenienced by a trial in Kings County.

Supreme Court, Suffolk County, denied the plaintiff’s motion, but the Second Department reversed. The purpose of the statutory venue provision is to protect a governmental entity from an inconvenient venue, but this can be outweighed by the convenience of witnesses and the ends of justice.

It is interesting to note that neither the location nor the nature of the accident is stated by the Appellate Division.