The following papers, numbered 1 - 4 were considered on this motion to change venue:

PAPERSNUMBERED

Notice of Motion/Order to Show Cause, — Affidavits — Exhibits1, 2

Answering Affidavits — Exhibits ________________________________3

Replying Affidavits ____________________________________________4< /I>

Cross-Motion:[ ] Yes[ X ] No

Upon the foregoing papers, it is ordered that this motion to change venue is granted for the reasons set forth below.

Plaintiff 215 West 90th Street Retail, LLC commenced this action as a result of an alleged breach of lease by defendant JSCM Corp. (JSCM), d/b/a Tal's Bagels, and an alleged breach of guaranty by defendants Hae Joo Minn and Sung Key Minn (together defendants Minn). The subject lease was between plaintiff, the landlord of 2446 Broadway, New York, NY (Premises), and defendant JSCM, the tenant of the Premises. Defendants Minn executed a personal guaranty, [*2]agreeing to make all payments due to plaintiff from defendant JSCM under the lease. Plaintiff designated Suffolk County as the place of trial based on the fact that its principal place of business is located in Suffolk County.

Defendant JSCM and defendants Minn now move to change the place of trial, pursuant to CPLR §§510 and 511, on the ground that Suffolk County is not a proper county. In seeking to change the venue of this action to New York County, the moving defendants maintain that none of the parties had a principal place of business, corporate office, or residence in Suffolk County at the time this action was commenced. In addition, defendants request that venue be changed to New York County, as this is the county where defendant JSCM has its principal place of business.

Venue is proper in any county where one of the parties resided when the action was commenced. CPLR 503(a). For a corporation, residency is in the county where the corporation's principal office is located. CPLR 503(c). CPLR 510 provides that a court has discretion to change venue when: (1) the county designated is not proper; (2) an impartial trial is unlikely in the designated county; or (3) the convenience of material witnesses and the ends of justice will be promoted by the change.

CPLR §511(b) provides that:

"[d]efendant may notice such motion [to change venue] 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."

Here, prior to service of an answer, defendants served a demand for change of venue, pursuant to CPLR §511(a), and within 15 days thereof served the instant motion, returnable in New York County. Plaintiff served an affidavit in opposition to defendants demand to change venue within 5 days after such demand. However, plaintiff's affidavit fails to show that New York County is an improper venue, or that Suffolk County is a proper county, as required by CPLR §511(b). As such, defendants properly noticed the instant motion to be heard in New York County.

CPLR §503(c) specifically states that "[a] domestic corporation...shall be deemed a resident of the county in which its principal office is located." Furthermore, the courts have established that a domestic corporation is bound by the county designation listed in its Certificate of Incorporation as the principal office. This is true regardless of the corporation's actual principal office in the State, and for as long as such designation remains unchanged. See Marko v The Culinary Institute of America, 245 AD2d 212 (1st Dep't 1997). See also Graziuso v 2060 Hylan Blvd. Restaurant Corp., 300 AD2d 627 (2nd Dep't 2002), Hamilton v Corona Ready Mix, Inc., 21 AD3d 448 (2nd Dep't 2005).

While, in opposition to the within motion, plaintiff provides the affidavit of the Vice-President, which states conclusively that "[p]laintiff's current principal business address is...situated within the territorial jurisdiction of the courts located in the County of Suffolk" (Notice of Motion, Exh. C, p. 2), this information does not outweigh the county designation, Nassau County, on file with the Department of State. In fact, plaintiff's affidavit admits that "[p]laintiff's principal place of business on file with the Department of State is in Nassau County", and that plaintiff is in the process of amending its business address on file with the Department of State. Notice of Motion, Exh. C, p. 1. [*3]

Having determined that this court has jurisdiction to entertain the within motion, it is undisputed that plaintiff's principal place of business, on file with the Department of State at the time this action was commenced, was in Nassau County. As none of the parties resided in or had their principal place of business in Suffolk County, at the time this action was commenced, plaintiff failed to designate a proper county, when commencing this lawsuit in Suffolk County. Defendant JSCM has shown, and it is undisputed, that its principal place of business is in New York County. Thus, defendants' motion to change the place of trial is granted.

Accordingly, it is

ORDERED that the motion to change venue to New York County Supreme Court is hereby granted; and it is further

ORDERED that the venue of this action is changed from the Supreme Court, County of Suffolk, and the Clerk of that Court is directed to transfer the papers on file in this action to the Clerk of the Supreme Court, County of New York, upon service of a certified copy of this order with notice of entry and payment of appropriate fees, if any, and such service shall be made within 45 days of entry; and it is further

ORDERED that, the Court of Supreme Court, New York County, upon receipt of a copy of this order with notice of entry, shall, without further fee, assign a New York County index number to the file transferred pursuant to this order, and

ORDERED that, within 45 days of entry, defendants shall serve upon plaintiff a copy of this order, with notice of entry, and

ORDERED that discovery will be completed expeditiously.

This constitutes the decision and order of the Court.

Dated:

DORIS LING-COHAN, J.S.C.