On March 1, 2013, Plaintiff C. M. ("Plaintiff") filed a summons and verified complaint against Defendant T. C. ("Defendant") seeking vacatur of the parties' stipulation of settlement ("Stipulation") which was incorporated but not merged into the parties' Judgment of Divorce, filed and entered February 28, 2011 ("Judgment of Divorce"), and equitable distribution of Defendant's real property assets.

On March 27, 2013, Defendant filed a verified answer. On March 28, 3013, Defendant filed a demand for change of place of trial. On March 29, 2013, Plaintiff served an affidavit in opposition to Defendant's demand to change venue.

Thereafter, on April 15, 2013, Defendant filed an amended verified answer and counterclaims and a notice of motion for an order, pursuant to CPLR §§ 501, 5015 and Article 5, transferring the matter to Supreme Court, Putnam County and, upon such transfer, an order dismissing the action, disqualifying Plaintiff's attorneys, and for such other and further relief as the Court deems just and proper.

On May 16, 2013, Plaintiff filed an affirmation of Anselmo A. Alegria, Esq., counsel for Plaintiff, dated May 9, 2013, and exhibits thereto, in opposition to Defendant's motion. [*2]

On May 16, 2013, Defendant filed a reply affidavit in support of his motion.

BACKGROUND OF THE ACTION

The parties were married in 1991 and have one child of the marriage (hereinafter, the "Subject Child"). On February 3, 2011, the parties entered into the Stipulation, which was incorporated but not merged into the parties' Judgment of Divorce.

The Judgment of Divorce was entered by the Honorable Francis A. Nicolai, Justice of the Supreme Court, in the Supreme Court, Putnam County. The Judgment of Divorce was filed and entered by the Putnam County Clerk on March 3, 2011.

The Judgment of Divorce, provides, in relevant part, that the "Stipulation of Settlement shall be incorporated herein by reference, shall survive and shall not be merged into this judgment; the parties are hereby directed to comply with every legal enforceable term and provision of said Stipulation as if such terms and conditions were set forth in their entirety herein and this Court retains jurisdiction of this matter concurrently with the Family Court for the purposes of specifically enforcing such of the provisions of said Stipulation as are capable of specific enforcement to the extent permitted by law with regard to maintenance, child support, custody and making such further judgment as it finds appropriate under the circumstances existing at the time application for that purpose is made to it, . . ." Judgment of Divorce, p.4.

CONCLUSIONS OF LAW

As an initial matter, the Court notes that the appropriate procedural mechanism

For the reasons set forth below, Defendant's motion to transfer venue of this proceeding to Putnam County is granted.

Pursuant to CPLR § 510, the Court, upon motion, may change the place of trial of an action where: (1) the county designated for that purpose is not a proper county; or (2) there is reason to believe that an impartial trial cannot be had in the proper county; or (3) the convenience of material witnesses and the ends of justice will be promoted by the change.

As an initial matter, the Court finds, that, contrary to Defendant's contention, there is no provision in the parties' Stipulation requiring that an action pertaining to it be commenced in Putnam County. Moreover, as Plaintiff is a resident of Westchester County, venue in this County is not, per se, improper.CPLR § 503(a)(". . . place of trial shall be in the county in which one of the parties resided when it was commenced . . ."); Hillery v. Borenstein, 202 AD2d 475, 475 (2d Dept. 1994).

Nonetheless, the Court finds that the ends of justice will be promoted by a transfer of venue to Supreme Court, Putnam County. First, judicial efficiency and economy militate against this Court's retaining venue. If this action were to proceed in Putnam County, that Court also would have authority to amend the Judgment to reflect any decision regarding the Stipulation, avoiding two inconsistent orders. Halloran v. Halloran, 161 AD2d 562, 564-65 (2d Dept. 1990)(two separate actions should be placed before same court if failure to do so would cause [*3]possibility of conflicting decisions); Terezakis v. Goldstein, 168 Misc 2d 298, 301-02 (Sup. Ct., New York Co. 1996) (litigation concerning or affecting a prior judgment is best heard in the county where the prior judgment was issued). Second, this Court does not have authority to vacate or amend the Putnam County Judgment. Gkanios v. Gkanios, 233 AD2d 367 (2d Dept. 1996)(vacatur of judgment must be sought in court where judgment entered); Koval v. Novick, 70 AD2d 586 (2d Dept. 1979)(applications for modification of judgment of divorce should be made to court which made original judgment, not Supreme Court of another county).

Allowing this matter to proceed in Westchester County could result in an intact Putnam County Judgment of Divorce which incorporates a vacated Stipulation. Such a result would, in effect, constitute a backdoor way of vacating the Judgment of Divorce, as a vacated Stipulation would effectively nullify most of the terms of the Judgment which incorporates it.

Finally, Westchester County is not the appropriate forum for the trial of this matter because the Judgment of Divorce indicates that the Court which issued it — Supreme Court, Putnam County - retains jurisdiction (together with the Family Court) over matters relating to it. Judgment of Divorce, p.4.;see Matter of D.W. v. G.W., 91 Misc 2d 537, 538 (Sup. Ct., Queens Co. 1977)(holding that court's retention of jurisdiction for support proceedings means that Supreme Court, Queens County has jurisdiction, rather than Putnam County, where Defendant resides).

For these reasons, venue of this action is more appropriate in Supreme Court, Putnam County. Accordingly, Defendant's motion is granted to the extent that the matter is hereby transferred to that Court.

II.The Remaining Issues are Reserved to the Trial Court Judge

The remaining issues raised by Plaintiff and Defendant, including Defendant's motion to dismiss this action and application for an order disqualifying Plaintiff's attorneys, are reserved to the Putnam County Supreme Court. Rosenblatt v. Sait, 34 AD2d 238, 239 (1st Dept. 1970)(orderly procedure and principles of comity mandate that once venue is changed, all motions should be transferred to new court); Burton v. Ontra, Inc., 167 Misc 2d 977, 978 (Sup. Ct., Queens Co. 1996)(where venue is transferred, principles of comity dictate that all motions be relegated to transferee court).

The Court considered the following submission by the parties: Summons and Verified Complaint, filed March 1, 2013; Defendant's Verified Answer, filed March 27, 2013; Defendant's demand to change venue, filed March 28, 3013; Plaintiff's affidavit in opposition to Defendant's demand to change venue, filed March 29, 2013; Defendant's Amended Verified Answer and Counterclaims and Notice of Motion, Defendant's Affidavit, Affirmation of Paul W. Meyer, Jr., Esq., and exhibits thereto, filed April 15, 2013; Affirmation of Anselmo A. Alegria, Esq., and exhibits thereto, in opposition to Defendant's motion, filed May 16, 2013; Defendant's Reply Affidavit, filed May 16, 2013.

This constitutes the Decision and Order of the Court.

DATED: White Plains, New York

November 4, 2013 [*4]

HON. COLLEEN D. DUFFY

JUSTICE OF THE SUPREME COURT