Supreme Court, Rockland County

Decided on April 22, 2026

Index No. 037308-2025

John P. Collins, Jr., J.

[*1]

The following papers, numbered 1—5, were read and considered in connection with Defendants Notice of Motion for an Order transferring this action to New York County pursuant to: (a) Civil Practice Law and Rules § 510(1) and 511(b) on the ground that the county designated by Plaintiff as the venue of this action is not a proper county for that purpose; (b) Civil Practice Law and Rules § 510(3) on the ground that the convenience of material witnesses and the ends of justice will be promoted by the change; and (c) Civil Practice Law and Rules § 507 on the ground that this action deals with use and enjoyment of real property located in the County of New York:

PAPERS NUMBERED

Notice of Motion (Motion Seq. No. 1)/Affidavit of Herbert Schuster/

Affidavit of Jacob Eisenstein/Exhibits 1-6 1

Affirmation of Cynthia L. Botello, Esq. in Opposition- Exhibits A-B/

Memorandum of Law in Opposition 2

Affidavit of Herbert Schuster in Reply 3

Letter to the Court from Cynthia L. Botello, Esq. dated February 19, 2026 4

Letter to the Court from Nathan M. Ferst, Esq. dated February 19, 2026 5

PROCEDURAL HISTORY

Plaintiff commenced the instant action by Summons, Verified Complaint and annexed documents filed on October 10, 2025 asserting thee (3) causes of action: (1) Inspection of Books and Records pursuant to Partnership Law § 99 as to both Defendant CHIZUK BETH ASSOCIATES, LLP (hereinafter CHIZUK BETH ASSOCIATES) and Defendant HERBERT SCHUSTER (hereinafter SCHUSTER), (2) Breach of Contract as to Defendant SCHUSTER, and (3) Breach of Fiduciary Duty as to Defendant SCHUSTER. See NYSCEF Doc. Nos. 1-18. Defendant CHIZUK BETH ASSOCIATES was served on November 20, 2026, by service on the New York State Department of State. See NYSCEF Doc. No. 23. Defendant SHCUSTER was served on November 25, 2026, pursuant to Civil Practice Law and Rules § 308(2) by "drop" service on "John Doe" who refused to identify himself other than to indicate he was a co-resident at 17 Waverly Place, Monsey, New York 10952. See NYSCEF Doc. No. 24.

On December 15, 2025, the parties filed a Stipulation extending Defendants' time to answer or otherwise respond to the Complaint until January 15, 2026. See NYSCEF Doc. No. 19. In the Stipulation, the Defendants also waived "whatever defenses which they otherwise may have concerning service of process herein and will not raise any defense(s) based on same." See NYSCEF Doc. No. 19. Defendants joined issue on January 15, 2026, with the filing of a Verified Answer raising seven (7) Affirmative Defenses. See NYSCEF Doc. No. 20.

On January 15, 2026, the Defendants filed a Demand to Change Venue pursuant to Civil Practice Law and Rules § 511(b) seeking a change of venue from Rockland County to New York County. See NYSCEF Doc. No. 21. On January 20, 2026, Plaintiff filed an Affirmation in Support of Plaintiff's Opposition to Defendants' Demand to Change Venue. See NYSCEF Doc. No. 25. Defendants filed the instant motion seeking a change of venue on January 29, 2026. See NYSCEF Doc. Nos. 26-34.

PAPERS SUBMITTED/ARGUMENTS

In support of the instant motion to change venue the Defendants have submitted two (2) affidavits, one from Defendant SCHUSTER, general partner of Defendant CHIZUK BETH ASSOCIATES and the other from Jacob Eisenstein (hereinafter Eisenstein), the manager of non-party EK Realty LLC. The instant application is not accompanied by an affirmation of an attorney or a memorandum of law. Rather, the affidavit of SCHUSTER, a non-lawyer and party in the action, includes references to statutory and case law in addition to some factual assertions regarding the factors considered by a Court in an application for change of venue.

Defendants' submission is improper due to the references to statutory and caselaw in the SCHUSTER Affidavit since he has no personal knowledge of the law he has cited, as evidenced by his statements of being "advised" by an unspecified person proceeding each recitation of legal authority.

"An affidavit is a statement of evidentiary facts under the sanction of an oath." People v Buckman, 333 NYS2d 452, 454 (County Ct, Monroe Cty, 1972). As noted by the Monroe County Court, an affidavit which includes law and facts is "nothing more than a Memorandum [*2]of Law, made under oath" which is "decidedly improper and has been specifically disapproved by the courts." Id; See In re Taylor, 37 NYS2d 675, 676 (2d Dept 1942); See also Montefiore Medical Center v Crest Plaza, LLC, 889 NYS2d 506, fn 3 (Supreme Court, Westchester County 2009). The long-held disapproval has been codified in 22 NYCRR § 202.8[c], which states "[a]ffidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of relevant law." Based upon the foregoing, the Court is constrained to disregard those portions of the SCHUSTER Affidavit that provide law and legal citations not properly before the Court. Therefore, Defendants submission solely consists of the factual assertions within the SCHUSTER Affidavit and the Eisenstein Affidavit, which provides facts in support from a non-party as Defendants have failed to submit an affirmation of counsel or a memorandum of law with the two (2) affidavits in support of their application.

The factual arguments in the SCHUSTER Affidavit are that Defendant CHIZUK BETH ASSOCIATES owns the subject building on Bennett Avenue in New York County as demonstrated by the tax return and registration of the building with New York City Department of Housing Preservation and Development. Defendant SCHUSTER also states that the subject building, which is the sole asset of the partnership, is managed by EK Realty LLC, a non-party management company, which is "located" at 939 Eighth Avenue in New York County. Additionally, Defendant SCHUSTER asserts that all of records regarding the subject building are maintained by EK Realty, LLC in Manhattan and the businesses tax returns are also maintained by accountants who also are present in Manhattan. Defendnat SCHUSTER asserts that all of the activities of the building are taken care of by the non-party, EK Realty, LLC, including any contact and communications with residents, vendors and suppliers.

In opposition the Plaintiff contends, inter alia, that the Defendants cannot prevail on their motion pursuant to Civil Practice Law and Rules §§ 510(1) and 511(b) as they have failed to establish that Plaintiff's choice of venue is improper in that they have not demonstrated on the date of commencement of the action that none of the parties resided in Rockland County. Plaintiff asserts that it is undisputed that Defendant SCHUSTER resided in Rockland County at the time the action was commenced given that he was served in this action in Rockland County and has not denied or challenged service at that residence in this action. Further, Plaintiff argues that the choice of commencement in Rockland County was pursuant to Civil Practice Law and Rules § 503(a), which authorizes venue based upon a party's residence.

Plaintiff also opposes Defendants' application for a change in venue pursuant to Civil Practice Law and Rules § 510(3) asserting that they have failed to meet their burden in demonstrating that the witnesses would be inconvenienced if the venue is not changed. Plaintiff avers that Defendants' argument of inconvenience -- i.e. that all the key witnesses, who are located in Manhattan, would be inconvenienced by having to travel to Rockland County -- is unavailing since Defendants have failed to demonstrate that travel between the two counties, which are geographically close, would impose more than an ordinary convenience. Further, Plaintiff contends that the Defendants' assertions are conclusory as to the necessity to travel and provide no specific hardship as to each of the witnesses. Additionally, Plaintiff argues that Defendants' claim that disruption would occur to business operations if they had to bring documents from New York County to Rockland County is meritless in light of the fact that most business records now are in an electronic format.

LAW/ANALYSIS

The Civil Practice Law and Rules sections regarding venue demonstrate "an express legislative preference for actions being tried in proper counties." Saxe v. OB/GYN Assocs. P.C., 86 NY2d 820, 822 (1995). Civil Practice Law and Rules § 510(1) provides that a court, upon a motion, may change the place of an action where the county designated by Plaintiff is not the proper county. A defendant seeking to change venue has the burden on a motion to establish there is no legal basis for the venue to remain where it has been designated by Plaintiff. See Civil Practice Law and Rules § 510(1).

Under Civil Practice Law and Rules § 503(a), venue is proper "in the county in which one of the parties resided when [the action] was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff." "'For venue purposes, a residence is where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency.'" Paulson v Paulson, 240 AD3d 807, 807 (2d Dept 2025) (quoting Ellis v Wirshba, 18 AD3d 805, 805 (2d Dept 2005)). Further, "'In the context of venue, a party may have more than one residence." Id. (quoting Pomerantsev v Kodinsky, 156 AD3d 655, 656 (2d Dept 2017)). As to partnerships. Civil Practice Law and Rules § 503(d) provides that "[a] partnership or an individually-owned business shall be deemed a resident of any county in which it has its principal office, as well as the county in which the . . . individual owner suing or being sued actually resides."

A defendant moving for a change of venue based on improper venue must show that the plaintiff's choice of venue is improper and that its choice of venue is proper. See Gonzalez v. Sun Moon Enterprises Corp., 53 AD3d 526 (2d Dept. 2008). Where a plaintiff's initial choice of venue is improper, the plaintiff forfeits its right to select the venue in an action. See Agostino Antiques, Ltd. v. CGU-American Employers' Ins. Co., 6 AD3d 469 (2d Dept. 2004); See also Galan v. Delacruz, 4 AD3d 449 (2d Dept. 2004).

When the venue chosen by a plaintiff is alleged to be improper, and the defendant properly serves with its answer a demand for change of venue pursuant to Civil Practice Law and Rules § 511(b) followed by a motion to change venue to a proper county pursuant to Civil Practice Law and Rules § 503(a), 510, and 511, the defendant is entitled as of right to a change of venue. See Thomas v. Guttikonda, 68 AD3d 853 (2d Dept. 2009); See also Obas v. Grappell, 43 AD3d 431 (2d Dept. 2007); Agostino Antiques, Ltd. v. CGU-American Employers' Ins. Co., 6 AD3d 469 (2d Dept. 2004). Such a motion made by a defendant should be granted particularly where the plaintiff fails to show that the county specified by the defendant is improper, or the county specified by plaintiff is proper. See Agostino Antiques, Ltd. v. CGU-American Employers' Ins. Co., 6 AD3d at 469. Where the movant establishes that the venue selected was improper, and the opposition submitted lacks any evidence demonstrating residence of one of the parties in the county selected, the motion to change venue should be granted. See Neu v. St. John's Episcopal Hosp., 27 AD3d 538 (2d Dept. 2006); See also La Cara Mia Bar Lounge, Inc. v. Great Locations, Inc., 875 N.Y.S.2d 821 (Sup. Ct. Bronx Cty 2009).

Here, Defendants complied with the procedural requirements set forth in Civil Practice Law and Rules § 511(b) in that they served a demand to change venue along with their answer in the instant action. Plaintiff timely opposed the demand, and Defendants timely filed the instant application.

As to the first prong of Defendant's application, pursuant to Civil Practice Law and Rules § 510(1). "To prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must [*3]show that the plaintiff's choice of venue is improper and that the defendant's choice of venue is proper." Faulkner v Best Trails & Travel Corp., 203 AD3d 890, 891(2d Dept 2022); See Civil Practice Law and Rules § 511(b). "Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper." Marrero v Mamlin, 170 AD3d 1159, 1160 quoting Young Sun Chung v Kwah, 122 AD3d 729, 730 (2d Dept 2014); See Faulkner v Best Trails and Travel Corp., 203 AD3d at 790-791.

In that Defendant's motion pursuant to Civil Practice Law and Rules § 510(1) is based upon the residence of parties, the Court must consider Civil Practice Law and Rules § 503. As noted above, Civil Procedure Law and Rules § 503(a) provides in general that venue is proper in the County in which SCHUSTER resides. However, the co-Defendant in the instant action is the partnership, Defendant CHIZUL BETH ASSOCIATES, and venue is proper both where the partnership has its principal office as well as in the county in which the partner who is being sued or is suing "actually resides." See Civil Practice Law and Rules § 503(d).

Here, Defendants have failed to meet their initial burden of demonstrating that the Plaintiff's choice of venue in Rockland County was improper and that the Defendants' choice of venue in New York County was proper pursuant to Civil Practice Law and Rules § 510(1). See Matoszko v Kielmanowiz, 136 AD3d 762, 763 (2d Dept 2016).

Defendant SCHUSTER has failed to allege any fact in either his Affidavit of the Eisenstein Affidavit that demonstrates that he does not reside at 17 Waverly Place, Monsey, New York where he was served process in this action. Further, Defendant SCHUSTER has not challenged service in this action and in fact waived any defense based upon improper service as part of a stipulation to extend Defendants' time to answer. With no challenge to the service of Defendant SCHUSTER as to whether he resides in Rockland County and a failure to make any argument as to the location of his residence, it is undisputed that SCHUSTER is a resident of Rockland County.

Turning to the residence of Defendant CHIZUK BETH ASSOCIATES, the assertions of Defendant SCHUSTER as the General Partner in his affidavit are unavailing. Specifically, SCHUSTER argues that venue is properly in New York County since the building -- which is located at 117-131 Bennett Avenue, New York, New York, is the sole asset of Defendant CHIZUK BETH ASSOCIATES and the managing agent is in New York County. However, there is no requirement in Civil Practice Law and Rules § 503(d) that the principal place of business of a partnership, such as Defendant CHIZUK BETH ASSOCIATES, determines the venue of an action over the residence of an individual party. Also, the managing agent is not a party to the instant action, and its principal place of business is of no moment in determining the principal place of business for the partnership. Nonetheless, as provided in Civil Practice Law and Rules § 503(d) the partnership is also a resident of Rockland County based upon the undisputed fact that Defendant SCHUSTER, a partner in the subject partnership, is a resident of Rockland County.

Next, a moving party may seek a discretionary change of venue pursuant to Civil Practice Law and Rules § 510(3) based upon a demonstration by the moving party that the venue where an action was commenced is inconvenient for material witnesses and the ends of justice. See Civil Practice Law and Rules § 510 (3).

The movant seeking a change of venue pursuant to Civil Practice Law and Rules § 510(3) must demonstrate the following requirements: (1) the movant's affidavit must list names, addresses and occupations of the witnesses who are expected to be called; (2) the movant must [*4]disclose the facts to which such witness will testify so that the court may determine whether the testimony of the proposed witness is "necessary and material"; (3) the movant must demonstrate that the witnesses are actually willing to testify; and (4) the movant must show that the witness would in fact be inconvenienced in the absence of a change of venue. See O'Brien v Vassar Brothers Hospital, 207 AD3d 169 (2d Dept 1995).

The Court finds the Defendants' application for a discretionary change of venue pursuant to Civil Practice Law and Rules § 510(3) insufficient. Defendants have failed to meet their burden of demonstrating that the four (4) requirements set forth by the O'Brien Court have been satisfied despite Defendant SCHUSTER's assertion that Jacob Eisenstein, the Managing Agent of the non-party Manager, EKT Realty, addressed same in his affidavit.

The Eisenstein Affidavit filed by the Defendants satisfies the first requirement in that it provides a list of witnesses along with their addresses, including Defendant SCHUSTER. See NYSCEF Doc. No. 28, ¶ 4 Further, Eisenstein satisfies the second requirement in that he asserts in his affidavit that the nine (9) listed witnesses would testify regarding the "information concerning the subject building that is inaccurate, incomplete or defective and has been withheld from Plaintiff." However, no additional specific explanation as to the testimony that would be provided by the witnesses is set forth in the Eisenstein Affidavit. Next the Court finds that the Eisenstein Affidavit satisfies the third requirement as set forth by the court in O'Brien in that the Affidavit contains a statement indicating the willingness of the witnesses to testify.

However, as to the fourth requirement, the Court notes that the Defendants have only made conclusory statements that the prospective witnesses would be inconvenienced and fail to establish the manner and degree that the witnesses would be inconvenienced. See Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d 927 (2d Dept 2016). As noted by the Appellate Division, Second Department: "[t]he mere fact that the witnesses would be required to travel a significant distance does not establish, without more, that requiring their testimony would impose an undue burden." Id. at 928. Here, the witnesses provided by Defendant all have addresses in New York County, which is within close geographic proximity to Rockland County by both automobile and mass transit, and there is no specific argument made by Defendants establishing that the travel between New York County and Rockland County would be prohibitive for any of the witnesses for any specific reason. Based upon the foregoing, Defendants' motion for a change of venue pursuant to Civil Practice Law and Rules § 510(3) is denied.

Finally, to the extent the Defendants have asserted that venue of the instant action is properly in New York County based upon the location of the property -- pursuant to Civil Practice Law and Rules § 507 -- that argument also lacks merit. Pursuant to Civil Practice Law and Rules § 507 "[t]he place of trial of an action in which the judgment demanded would affect the title to, or possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated." A review of the causes of action and allegations as set forth in the subject Complaint demonstrates that a judgment in this action would not affect the title to, the possession of, or use or enjoyment of 117-131 Bennett Avenue as required for venue of real property actions pursuant to Civil Practice Law and Rules § 507.

The causes of action in the subject Complaint address the management of the partnership and the fiduciary duty of one partner to another in a partnership regarding financial filings and the purpose of the partnership is ownership of 121 Bennett Avenue. Further, the Partnership Agreement annexed to the Complaint demonstrates that limited partners of Defendant CHIZUK [*5]BETH ASSOCIATES' -- such as Plaintiff, are prohibited from interfering in any manner with the conduct or control of the business of the Partnership and have no right to act for or bind the Partnership. See NYSCEF Doc. No. 3, Section 5.2. Therefore, even if Plaintiff obtained the relief he is seeking in this action, as a limited partner, he cannot affect the partnership's ownership, possession or title to the property. See NYSCEF Doc. No. 3, Section 2.1. The Court notes that the Partnership's principal place of business is in New York County, but since Civil Practice Law and Rules § 503(d) provides an option for filing against a partnership, Plaintiff's choice to file in the county where Defendant SCHUSTER resides does not render the venue choice of Rockland County improper or require a transfer of venue.

Based upon the foregoing, Defendants have failed to meet their burden pursuant to Civil Practice Law and Rules § 510(1), to demonstrate Plaintiff's choice of venue in Rockland County is improper and requires a mandatory change in venue.

In arriving at this decision the Court has reviewed, evaluated and considered all of the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that the Defendant's Motion to Change Venue (Motion Seq. No. 1) is denied in its entirety; and it is further

ORDERED that the parties are directed to appear in person on May 27, 2026 for a preliminary conference.

The foregoing constitutes the Decision and Order of this Court on Motion Seq. No. 1

Dated: April 22, 2026

New City, New York

Hon. John P. Collins, Jr., J.S.C.