Supreme Court, Cortland County, October 27, 2021

Hinman, Howard & Kattell, LLP, Binghamton (Sarah Grace Campbell of counsel), for LCD Acquisitions, LLC and another, respondents.

David S. Berger, Town Attorney, Vestal, for Town of Vestal Town Board, respondent.

Tooher & Barone, LLP, Albany (Meave M. Tooher and William F. Demarest, III of counsel), for petitioner.

Petitioner commenced this CPLR article 78 proceeding on behalf of Friends for Responsible Vestal Zoning, an unincorporated association, against the Vestal Town Board, LCD Acquisitions, LLC, and BHL Ventures, LLC, seeking to set aside the Town Board's negative declaration of significance pursuant to the New York State Environmental Quality Review Act and its resolution approving a local law which rezoned six parcels to permit construction of a housing complex by LCD on land presently owned by BHL. On August 18, 2021, a demand to change venue was filed on behalf of all three respondents, pursuant to CPLR 511, asserting that venue in Cortland County is improper under Town Law § 66 (1) and demanding that venue be changed to Broome County, the county in which the Town of Vestal is situated. On August 23, 2021, petitioner's counsel filed an affirmation asserting that venue in Cortland County is proper pursuant to CPLR 506 (b). On August 27, 2021, LCD and BHL filed a timely motion to change venue. By notice filed on August 30, 2021, the court advised that return of the petition would be held in abeyance pending determination of the motion to change venue. The Town Board has not made any motion regarding venue, but on September 30, 2021, its counsel{**73 Misc 3d at 1019} filed an affidavit in support of the motion that was made by LCD and BHL. Petitioner opposes the motion.

[1] In commencing this proceeding, petitioner asserted, pursuant to CPLR 506 (b), that venue is proper in Cortland County, which is a county within the judicial district where respondent Town Board made the decisions challenged in the proceeding. All three respondents contend that venue in Cortland County is not proper. They rely on Town Law § 66 (1), which provides that "[t]he place of trial of all actions and proceedings against a town or any of its officers or boards shall be the county in which the town is situated" (emphasis added). The Appellate Division, Fourth Department, recently held that there is no conflict between Town Law § 66 (1) and CPLR 506 (b) and that Town Law § 66 (1), as the more specific statute, controls determination of the proper venue for proceedings against a town or any of its officers or boards (see Matter of Zelazny Family Enters., LLC v Town of Shelby, 180 AD3d 45, 48-49 [2019]).^[FN*] Thus, the proper venue for this proceeding is Broome County, the county within which the Town of Vestal is situated.

[2] However, the inquiry does not end with determination that venue does not, in the first [*2]instance, properly lie in Cortland County, for petitioner also contends that the Town Board has waived its right to object to improper venue and, further, that the Town Board's waiver precludes LCD and BHL from seeking a change of venue based on Town Law § 66 (1). A motion to change venue on the ground that the designated venue was improper must be made within 15 days after service of a demand to change venue (see CPLR 511 [b]; Valley Psychological, P.C. v Government Empls. Ins. Co., 95 AD3d 1546, 1547 [2012]). A motion to change venue on the ground that the designated venue is improper made more than 15 days after service of a demand to change venue must be denied as untimely (see Martirano v Golden Wood Floors Inc., 137 AD3d {**73 Misc 3d at 1020} 612, 613 [2016]; Jackson v City of New York, 127 AD3d 552, 552 [2015]; Singh v Becher, 249 AD2d 154, 154 [1998]). Thus, by failing to make a motion to change venue within 15 days after filing its demand pursuant to CPLR 511 (b), the Town Board waived its right to compel venue of this proceeding in Broome County pursuant to Town Law § 66 (1).

With respect to petitioner's argument that LCD and BHL do not have standing to assert that venue must be placed in accordance with Town Law § 66 (1), venue provisions that are enacted for the convenience of a municipality, such as Town Law § 66 (1), may be invoked only by a municipality and, when waived by a municipality, may not be invoked by other parties (see Arduino v Molina-Ovando, 141 AD3d 622, 623 [2016]; Forteau v County of Westchester, 196 AD2d 440, 441 [1993]; Yasgour v City of New York, 169 AD2d 673, 674 [1991]; City of New York v Town of Colchester, 28 Misc 2d 426, 428 [Sup Ct, NY County 1961], affd 16 AD2d 772 [1962]). Accordingly, LCD and BHL are precluded from seeking a change of venue pursuant to Town Law § 66 (1). The argument made by LCD and BHL that the venue may be placed in Broome County on discretionary grounds, notwithstanding the Town of Vestal's failure to make a timely motion to change venue pursuant to CPLR 511 (b), may not be considered because no motion was made for such relief (see Cintas Corp. v Ralph Pontiac-Honda, 256 AD2d 1094, 1095 [1998], citing Pitegoff v Lucia, 97 AD2d 896, 896-897 [1983]). The Town Board's remaining contention—that venue is proper in Broome County pursuant to CPLR 507—is likewise not properly before the court and, in any event, lacks merit.

Based on the foregoing, respondents' motion to change venue is denied.