[*1]
| Office Kei Inc. v Rubens |
| 2010 NY Slip Op 51691(U) [29 Misc 3d 126(A)] |
| Decided on October 1, 2010 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST
DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570821/09.
Office Kei Inc., Plaintiff-Respondent,
against
Richard Rubens,
| OCTOBER 1, 2010 |
| SUPREME COURT, APPELLATE TERM, FIRST
DEPARTMENT | | | | |
| | | | | | |
| | | | | | | | Marc
h 2010 Term |
McKeon, P.J., Shulman, Hunter, Jr., JJ.
Office Kei Inc., NY County
Clerk's No.
Plaintiff-Respondent,570821/09
-against-
Richard Rubens,Calendar No. 10-084
Defendant-Appellant.
Defendant, as limited by his briefs, appeals from that portion of an order of the Civil Court of the
City of New York, New York County (Anil C. Singh, J.), entered August 5, 2009, which denied
his motion to dismiss the complaint based on improper venue.
Per Curiam.
Order (Anil C. Singh, J.), entered August 5, 2009, insofar as appealed from, affirmed, without
costs.
A transitory action in Civil Court shall be brought "in the county in which one of the parties
resides" (CCA 301[a]). For the purpose of determining proper venue, a corporation, such as
plaintiff, is a resident of any county wherein it keeps an office (CCA 305[b]). Since it is
undisputed that plaintiff's place of business was located in New York County, the action was
properly venued in that county and Civil Court properly denied defendant's motion to disturb
plaintiff's venue choice. Moreover, contrary to defendant's contention, Civil Court did not have
authority to grant a discretionary change of venue to Suffolk County District Court (see
Personnel Career Servs. Inc. v Pizza Huts of Dutchess County, Inc., 149 Misc 2d 729 [1991];
Medicorp v Avis Corp., 122 Misc 2d 813, 815 [1984]). To the extent the pro se defendant's
briefs on appeal can be construed as raising a challenge to whether a proper basis exists for Civil
Court to exercise personal jurisdiction over defendant, any such challenge was waived by
defendant based on his failure to raise it in his answer or seek relief by way of a motion pursuant
to CPLR 3211(a) (see Interlink Metals & Chemicals, Inc. v Kazdan, 222 AD2d 55 [1996];
Wiesener v Avis Rent-A-Car, Inc., 182 AD2d 372 [1992]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 01, 2010
Defendant-Appellant.
Defendant, as limited by his briefs, appeals from that portion of an order of the Civil Court
of the City of New York, New York County (Anil C. Singh, J.), entered August 5, 2009, which
denied his motion to dismiss the complaint based on improper venue.
Per Curiam.
Order (Anil C. Singh, J.), entered August 5, 2009, insofar as appealed from, affirmed,
without costs.
A transitory action in Civil Court shall be brought "in the county in which one of the parties
resides" (CCA 301[a]). For the purpose of determining proper venue, a corporation, such as
plaintiff, is a resident of any county wherein it keeps an office (CCA 305[b]). Since it is
undisputed that plaintiff's place of business was located in New York County, the action was
properly venued in that county and Civil Court properly denied defendant's motion to disturb
plaintiff's venue choice. Moreover, contrary to defendant's contention, Civil Court did not have
authority to grant a discretionary change of venue to Suffolk County District Court (see
Personnel Career Servs. Inc. v Pizza Huts of Dutchess County, Inc., 149 Misc 2d 729
[1991]; Medicorp v Avis Corp., 122 Misc 2d 813, 815 [1984]). To the extent the pro se
defendant's briefs on appeal can be construed as raising a challenge to whether a proper basis
exists for Civil Court to exercise personal jurisdiction over defendant, any such challenge was
waived by defendant based on his failure to raise it in his answer or seek relief by way of a
motion pursuant to CPLR 3211(a) (see Interlink Metals & Chemicals, Inc. v Kazdan,
222 AD2d 55 [1996]; Wiesener v Avis Rent-A-Car, Inc., 182 AD2d 372 [1992]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 01, 2010