This is an action for breach of contract. Plaintiff Eber-NDC, LLC ("Eber" or "Eber-NDC") is a Delaware limited liability company that is engaged in the business of wholesale distribution of alcoholic beverages in upstate New York. Eber maintains its primary office for doing business at 155 Paragon Drive, Rochester, which is located in Monroe County.

Defendant Star Industries, Inc. ("Star") is a domestic corporation which is a national supplier of wine and spirits. Star's principal place of business is in Nassau County.

In November, 2004, Star and Eber entered into an agreement whereby Eber would become Star's exclusive wholesale distributor in the New York metropolitan area. Eber alleges that, in reliance upon Star's promise of a long-term and exclusive relationship, it spent over $3 million to expand its Westchester warehouse, acquire new office space and develop a sales force. Eber also claims that it purchased millions of dollars worth of Star's products in reliance upon the distributorship agreement. Eber operated as Star's exclusive wholesale distributor in the metropolitan area from February, 2005 until the end of July that year. Eber alleges that Star wrongfully terminated the exclusive distributorship effective August 1, 2005.

Eber commenced an action against Star by filing a summons with notice in Supreme Court, Monroe County on June 28, 2005.The summons with notice stated

that the nature of the action was for breach of contract, promissory estoppel and unjust enrichment.

On July 8, 2005, Star and a related entity, Black Prince Distillery, Inc. ("Black Prince"), commenced an action against Eber by filing a summons with notice in Supreme Court, Nassau County. Black Prince is the company through which Star actually ships its product. On July 27, 2005, Star and Black Prince served their complaint in the Nassau County action. The complaint asserted claims for an account stated, breach of contract, unjust enrichment, breach of the implied covenant of good faith and fair dealing, unfair competition and deceptive acts and practices in violation of General Business Law § 349 .

On August 3, 2005, Eber filed its complaint in the Monroe action and also served a motion to consolidate the two actions or, in the alternative, to stay the Nassau County action. The motion to consolidate or stay was made in the Monroe County action and served with a blank return date.

On August 5, 2005, Star served a demand to change the place of trial of the [*2]Monroe action to Nassau County pursuant to CPLR 511(b). In a letter accompanying the demand, Star asserted that venue in Monroe County was improper because documents filed with the Division of Corporations of the Department of State indicated that Eber's principal office was located in Nassau County.

The reason that corporate filings indicated that Eber-NDC's principal office was in Nassau was that there had been an oversight when the limited liability company was established. In anticipation of acquiring Premier Wine & Spirits, a Nassau County wholesaler, National Distributing Company, Inc. ("NDC") created a limited liability company which was to be known as Iberia Imports, LLC . Iberia's application for authority to do business in New York was filed pursuant to Limited Liability Company Law § 802 on February 12, 2004. However, when the acquisition of Premier could not be consummated, NDC decided to form an association with Eber Bros. Wine & Liquor Corp. ("Eber Bros."), an established distributor which is based in Rochester. NDC and Eber Bros. elected to operate as a limited liability company and to use Iberia's application for authority to do business which had already been filed. Thus, on January 26, 2005, Iberia Imports filed a certificate of amendment of its application pursuant to Limited Liability Company Law § 804 stating that the name of the limited liability company was changed to Eber-NDC, LLC. However, in the certificate of amendment, NDC neglected to change the principal office of the limited liability company from Nassau to Monroe County.

On August 22, 2005, Star moved in the Monroe action to transfer the action to Nassau County and to stay the Monroe action pending disposition of its motion to transfer. The basis of Star's motion was that venue in Monroe County was improper because Eber-NDC's filings with the Department of State indicated that its principal office was located in Nassau County. The motion was brought on by order to show cause granted by this Court and returnable September 30, 2005 in Nassau County.

Included in the order to show cause was an interim stay of the Monroe action pending the hearing of the motion to transfer.

Nonetheless, by order dated September 28, 2005, the Supreme Court, Monroe County (Hon. Kenneth R. Fisher, J.S.C.) granted Eber's motion for consolidation of the two actions and placed venue in Monroe County. He granted consolidation because he found the two actions "nearly identical." Justice Fisher based his venue decision on the priority of the Monroe action both with respect to commencement and the filing of the consolidation motion. Finding that Eber's principal office was "in reality" in Monroe County, Justice Fisher rejected Star's claim that venue was improper. Justice Fisher expressly stated that his ruling was without prejudice to a motion by Star to transfer based on forum non conveniens, pursuant to CPLR 510 (3); namely, the convenience of material witnesses and the ends of justice would be promoted by a change in the place of trial.

By order dated October 7, 2005, this Court denied Star's motion to change the venue of the Monroe County action to Nassau County and for a stay of the Monroe County action. Because the two actions involve common questions of law and fact, this Court agreed with Justice Fisher that the actions should be tried together. This Court noted that, in response to Eber's motion to consolidate, Star might have cross-moved [*3]before Justice Fisher for a change of venue, rather than seeking an order to show cause from this Court. This Court further noted that although Star's motion had

been based upon improper venue, the issue of inconvenient forum had been addressed via telephone conference and letter briefs later submitted by counsel.

By order granted on September 29, 2006, the Appellate Division, Fourth Department reversed Justice Fisher's order (32 AD3d 1251).The Appellate Division noted, "If related Supreme Court actions are pending in different counties, the court should designate, in the order of consolidation or joint trial, a venue for the place of trial." The Fourth Department further stated that while a separate motion for a change of venue need not be made, the parties were "not precluded" from making such a motion.

The Fourth Department also held that after the filing of Eber's motion to consolidate in Monroe County, Star was authorized to make a separate motion to change venue in this Court. Star had duly served a demand pursuant to CPLR 511(b) to change the place of trial to Nassau County on the ground that venue in Monroe County was improper. CPLR 511(b) provides that within 15 days after service of the demand, the defendant may move to change the place of trial, unless within 5 days after such service plaintiff serves a consent to change the place of trial to that specified by the defendant. The rule further provides that the defendant may notice the motion to be heard in the county which he/she specified in the demand to change venue, unless plaintiff, within 5 days after service of the demand, serves an affidavit showing either that the county specified by defendant is not proper or that the county designated by plaintiff is proper. Eber failed to serve such an affidavit in response to Star's demand to change the place of trial. The Fourth Department held that Star was thus authorized by CPLR 511(b) to move to change venue before this Court, despite the fact that Star's application was in response to a motion to consolidate filed in Monroe County.

In addition, it was held that this Court was authorized by CPLR 2201 and 511(c) to grant a stay of the Monroe County action. CPLR 2201 provides, "Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just." If a party seeks such a stay, the proper procedure is to apply to the judge presiding over the other action. Fourth Fed'l Savings & Loan Ass'n v. Garber, 172 AD2d 399 (1st Dept. 1991).

CPLR 511(c) provides, "No order to stay proceedings for the purpose of changing the place of trial shall be granted unless it appears from the papers that the change is sought with due diligence." The Fourth Department reasoned that since Eber was permitted by CPLR 511(b) to move for a change of venue in this Court, this Court was authorized by CPLR 511(c) to grant a stay of the Monroe County action.

The Fourth Department concluded that Justice Fisher erred by "failing to give effect" to this Court's stay by ordering consolidation while the stay remained in effect. Thus, the Appellate Division reversed the Monroe County order consolidating the cases and denied Eber's motion to consolidate.

In the wake of the reversal by the Fourth Department, Star now moves to renew its motion for a change of venue pursuant to CPLR 511(b) on the ground that venue in Monroe County is improper. Eber continues to maintain that Monroe County is a proper [*4]venue because that is where it actually maintains its principal office. Eber also stresses the relative progress of the Monroe County action based upon the substantial completion of discovery and Justice Fisher's ruling on Star's motion for summary judgment.

DISCUSSION

Star's motion to change the place of trial must be denied because once a motion for consolidation was pending before Justice Fisher, Star should not have moved for a change of venue before this Court. CPLR 602(a) provides that when actions involving a common question of law or fact are pending before a court, the court upon motion may order consolidation or joint trial and "may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."

Among the orders which may be made to avoid unnecessary costs or delay is an order fixing the venue of the remaining action. Perinton Assoc. v. Heicklen Farms, Inc., 67 AD2d 832, 833 (4th Dept. 1979). A separate motion for a change of venue need not be made (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C602:3). The court should ordinarily place the venue of the consolidated action in the county where the first action was commenced, unless special circumstances are present. Gomez v. Jersey Coast Egg Producers, Inc., 186 AD2d 629, 630 (2nd Dept. 1992). See also, Perini Corp. v. WDF, Inc., 33 AD3d 605 (2nd Dept. 2006). The determination as to whether special circumstances are present is addressed to the sound discretion of the court. Id.

While a separate motion for a change of venue is not "precluded" by CPLR 602, considerations of judicial economy and the prevention of forum shopping dictate that the motion for a change of venue be made to the judge who is considering the consolidation motion. See, Matter of Gleason, 96 NY2d 117 (2001). Because the judge to whom the consolidation motion has been made will have gained familiarity with the actions, it would result in a waste of judicial resources for another judge to decide the change of venue motion.Furthermore, it has been noted that forum shopping is destructive of the integrity of the courts and erodes public confidence in the judicial system. In re Boehmer, 240 B.R. 837, 842 (E. D. Pa. 1999). Permitting a change of venue motion to be made before another judge may also create the potential for inconsistent rulings and unseemly conflict within the court system. Requiring a separate motion for a change of venue to be made to the judge considering the consolidation motion will "discourage forum shopping, and may improve judicial efficiency and provide fair, even-handed justice to all parties." Tanges v. Heidelberg North America, 93 NY2d 48, 58 (1999).

Moreover, CPLR 511(b) does not authorize a separate motion for a change of venue to be noticed in the other court once a motion for consolidation has been made in one of the actions. The language of CPLR 511 suggests that it applies to a motion to change the place of trial of a single action rather than a motion to change the place of trial of two actions which are to be tried jointly or of two actions which have been consolidated by the court. Thus, CPLR 511(a) provides that a motion to change the place of trial on a ground other than improper venue shall be made within a reasonable time after commencement of "the action." CPLR 511(b) provides that prior to making a motion to change the place of trial on the ground of improper venue, defendant must [*5]serve a written demand that "the action" be tried in a county which defendant specifies as proper. CPLR 511(d) provides for the delivery to the clerk of the county to which the place of trial is changed of all papers filed in "the action."

On the other hand, in providing that the court "may make such other orders as may tend to avoid unnecessary costs or delay," CPLR 602(a) suggests that the court ordering consolidation or a joint trial should be the one to resolve the venue question. A venue determination which is ancillary to a consolidation order is guided by priority of filing unless special circumstances are present. Under CPLR 511(b), if a demand to change the place of trial has been served, defendant may notice his motion to change the place of trial in the county which he has specified as proper. However, the alternate criteria for a venue determination ancillary to consolidation suggest that a separate motion to change the place of trial may not be noticed in a "proper county" pursuant to CPLR 511.

Additionally, requiring the motion for a change of venue to be made to the judge considering the consolidation motion furthers the policy embodied in CPLR 511(c) that a change in the place of trial be "sought with due diligence." Under CPLR 602, when two actions are pending in different counties of Supreme Court, the motion to consolidate may be made in either county. Perinton Assoc. v. Heicklen Farms, Inc., supra. However, the parties have an incentive to move for consolidation promptly

because once the motion has been made, any separate motion for a change of venue must be made to the judge who is considering the consolidation motion. This is especially true when that judge has already spent substantial time overseeing discovery and addressing a summary judgment motion.

Accordingly, it is,

ORDERED, that Defendant Star Industries Inc.'s motion to change the place of trial to Nassau County is denied. The matter is respectfully referred to the Supreme Court, Monroe County for all purposes.

This shall constitute the decision and Order of the Court.

Dated Mineola, NY____________________________

February 6, 2007Hon. LEONARD B. AUSTIN, J.S.C.