Discolo v. River Gas & Wash Corp.

41 A.D.3d 126, 837 N.Y.S.2d 95

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 2007
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered May 11, 2006, which denied defendants’ motion to change venue of this action to Nassau County, and implicitly denied as academic plaintiffs cross motion to change venue to Kings County in the event of a determination that Bronx County was not the proper venue, modified, on the law, to grant the cross motion, venue changed to Kings County, and otherwise affirmed, without costs.

Plaintiff predicated his designation of Bronx County as the venue of this personal injury action on the 1990 certificate of incorporation reciting that defendant River Gas & Wash Corp. (RGW) maintained its corporate office in the Bronx. However, the record establishes that RGW’s certificate of incorporation was amended in 1999 to provide that “[t]he office of the corporation is located in Kings County, New York,” and neither plaintiff nor RGW’s codefendant is a Bronx resident. Since we look to the certificate of incorporation to determine a corporation’s principal place of business for purposes of CPLR 503 (c) (see Hill v Delta Intl. Mach. Corp., 16 AD3d 285, 286 [2005]), venue should be transferred to Kings County, in accordance with RGW’s certificate of incorporation at the time the action was commenced. We decline to apply the general rule that a plaintiff forfeits the right to select venue by initially choosing an improper venue because, in this case, plaintiff commenced the action in an improper venue as the result of reliance on an official record (see Vasquez v Sonin, 259 AD2d 340, 341 [1999]). Accordingly, venue is transferred to Kings County, plaintiff’s second choice, rather than, as urged by defendants, to Nassau County, the residence of plaintiff and the codefendant. Concur— Friedman, Sweeny and McGuire, JJ.