By notice of motion filed on January 12, 2007, defendants WELSBACH ELECTRIC CORP. OF L.I. (hereinafter WELSBACH or movant) and DONALD R. DUFFY (hereinafter DUFFY or movant) move jointly pursuant to CPLR §§503(a) and (c) and 511 for an order changing the venue to Nassau County on the grounds that Kings County is an improper venue. Plaintiff opposes the motion.

On October 31, 2006, plaintiff commenced the instant action by filing a summons and verified complaint with the King's County Clerk's office.

The movants' superseding motion papers consist of a memorandum of law, an affidavit of their counsel and several annexed exhibits. The annexed exhibits includes the summons and complaint, a demand to change venue, certified copies of filings made by Welsbach with the State of New York Department of State (hereinafter NYSDS), an affidavit of Welsbach's president, and an internet-generated document from the NYSDS pertaining to Welsbach.

Plaintiff's opposition and defendants' reply papers consist of an affidavit or affirmation from their respective attorneys.

CPLR §§ 501 and 508 generally sets forth the rules governing the correct choice of the place of trial. CPLR §503 captioned "venue based on residence", set forth the rules governing venue for different causes of action based on the residences of the parties. CPLR §510 sets forth the grounds for changing the place of trial and § 511 sets forth the procedure for seeking the change. The place of trial or venue means the geographical subdivision in which an action may be brought and assumes that the chosen court already has both subject matter and personal

jurisdiction. A motion to change venue pursuant to CPLR § 510(1) is premised on a claim that the [*2]venue chosen is improper. Its review requires that the court identify the underlying cause of action within one of four categories. The first is actions affecting interest in real property, known as local actions. The second is all other actions, popularly known as transitory actions. The third is an action to recover a chattel which the parties may elect to treat as local or transitory. The fourth is actions where the parties have contracted to a choice of venue, whether the action has been treated as local or transitory. Plaintiff's complaint seeks to recover damages for personal injuries allegedly sustained during a motor vehicle accident on April 7, 2005 on the Southern State Parkway, Town of Hempstead, County Nassau, New York. The case at bar is therefore transitory in nature and governed by CPLR §503(a).

CPLR §503(a) provides: Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county.CPLR § 503 (c) provides: Corporation. A domestic corporation, or a foreign corporation authorized to transact business in the state, shall be deemed a resident of the county in which its principal office is located; except that such a corporation, if a railroad or other common carrier, shall also be deemed a resident of the county where the cause of action arose.

Actions brought in the wrong county contrary to CPLR §503(a) may be changed as of right. A defendant's desire for a change of venue as of right must be commenced by first issuing a demand upon the plaintiff and absent acquiescence by plaintiff, by a motion filed with the court pursuant to CPLR § 511(b). CPLR § 511(b) provides: Demand for change of place of trial upon ground of improper venue, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper.

CPLR §510 provides three grounds for changing the place of trial of an action. The court may change the place of trial because the county designated for that purpose is not a proper county; or there is reason to believe that an impartial trial cannot be had in the proper county; or the convenience of material witnesses and the ends of justice will be promoted by the change. Only the first ground is considered a change as of right. The latter two grounds are discretionary (Morale v. La Grange, Inn, Inc., 160 AD2d 783 [2nd Dept 1990]; see also O'Brien v. Vassar Brothers Hospital, 207 AD2d 169, 171[2nd Dept. 1995])

Defendant movants did not specifically set forth the precise subsection of CPLR §510 they were invoking for seeking a change of venue. In fact plaintiff's opposition papers highlighted this deficiency and claimed this omission violated the requirements of CPLR §2214 and provided an independent basis for denying the motion. Plaintiff also prudently offered opposition addressing each possible subsection. [*3]

Examination of the motion papers, however, reveal defendants' service of a demand to change venue to the plaintiff in accordance with CPLR 511(b) and legal arguments limited to a change of venue as of right. Therefore, notwithstanding plaintiff's correct assertion regarding the deficiencies in the motions papers, the court deems the application to be clearly a demand for change of venue as of right and finds the deficiencies may be disregarded pursuant to CPLR §2001.

It is undisputed that plaintiff selected Kings County as the venue for the instant action premised on Welsbach's residence in Kings County. It is also undisputed that Welsbach Corporation filed its certificate of incorporation in 1955 using the corporate name of Budin Contracting Corp. and designated Kings County as the county in which the corporate offices would be located.

Welbach's certified filings with the NYSDS annexed to its motion papers establishes the following facts. In 1992 it changed its name from Budin Contracting Corp. to JWF Welsbach Electric Corp. of L.I., and in 1995 it changed its name again to its current name of Welsbach Electric Corp. of L.I.. The filings also show several changes in the the name and address of the designated agent for service of process.

New York Business Corporations Law § 402(a)(3) provides that a certificate of incorporation must include the county within this state in which the office of the corporation is to be located. New York Business Corporations Law §102(a)(10) provides in pertinent part that the office of a corporation means the location which is stated in the certificate of incorporation of a domestic corporation and such office need not be a place where business activities are conducted by such corporation.

Although neither party submitted a copy of the certificate of incorporation, the movants admit that the certificate of incorporation did indeed designate Kings County as the location of its corporate offices. Furthermore, defendants motion papers contained an internet-generated document from the NYSDS advising that Welsbach is in Kings County.

There is no dispute that Welsbach has not changed or amended the designation of Kings County as it residence since its incorporation in 1955. The movants contend that this fact is not controlling on the issue of Welsbach's residence for venue purposes. The movant offers the affidavit of Welsbach's president who avers that Welbach principal place of business is 300 Newtown Road, Plainview, New York and that it has never had an office in Kings County. The movant also offers documents filed with the NYSDS to show that none of them reflect a Kings County business office.

The movants contention is incorrect. The sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county (see Hamilton v. Corona Ready Mix, Inc., 21 AD3d 448 [2nd Dept 2005] citing Graziuso v. 2060 Hylan Blvd Rest. Corp., 300 AD2d 627 [2nd Dept 2002]. Here, the plaintiff properly placed venue in Kings County, despite the fact that Welsbach claimed that its office was located in Nassau County, since Kings County was the county designated in its certificate of incorporation, and the defendant failed to prove that the certificate had been amended to designate a different county (Hamilton v. Corona Ready Mix, Inc., supra, 21 AD3d at 448). [*4]

Defendants motion to change venue from Kings County to Nassau County is denied.

The foregoing constitutes the decision and order of this court.

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J.S.C.