Ovid v. Schafer

Appellate Division of the Supreme Court of New York

Ovid v. Schafer

66 A.D.2d 741, 411 N.Y.S.2d 314, 1978 N.Y. App. Div. LEXIS 14016

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 1978

StatusPublished

This text of 66 A.D.2d 741 (Ovid v. Schafer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ovid v. Schafer, 66 A.D.2d 741, 411 N.Y.S.2d 314, 1978 N.Y. App. Div. LEXIS 14016 (N.Y. Ct. App. 1978).

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Opinions

Order, Supreme Court, New York County, dated June 6, 1978, denying motion of defendants Schafer to change the venue to Kings County, to dismiss the complaint for failure to state a cause of action and for summary judgment in favor of defendants, unanimously modified, on the law and the facts, without costs or disbursements, to grant the motion of defendants Schafer to change venue to Kings County and otherwise affirmed. This action finds its wellspring in a now-questioned settlement of an action in Kings County between plaintiff and defendant Edward J. Schafer. Unlike the other defendants, defendant American Telephone and Telegraph Company (AT&T) had no interest at stake in the Kings County action. The sole reason advanced by plaintiff for laying the venue of this action in New York County is that AT&T has been made a defendant and that is its county of residence. We find, however, that AT&T is not a necessary party. The only relief sought against it, enjoining it from transferring on its books any stock of the defendants Schafer, is as well accomplished by the relief sought against the defendants Schafer enjoining them from transferring their AT& T stock. AT&T’s interest, although affected, will not be affected inequitably (Matter of Castaways Motel v Schuyler, 24 NY2d 120,125). The inclusion of an unnecessary party should not be the sole basis of venue (cf. CPLR 1003). In denying a change of venue Special Term also found that the moving defendants had failed to serve the prior written notice on the plaintiff required by CPLR 511 (subds [a], [b]) but we find no evidence in the record to support this finding. Special Term properly found the complaint, viewed in a light most favorable to plaintiff, to state a cause of action and properly [742]*742denied summary judgment as issue had not then been joined. Concur— Lupiano, J. P., Evans, Lynch and Sullivan, JJ.

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Order, Supreme Court, New York County, dated June 6, 1978, denying motion of defendants Schafer to change the venue to Kings County, to dismiss the complaint for failure to state a cause of action and for summary judgment in favor of defendants, unanimously modified, on the law and the facts, without costs or disbursements, to grant the motion of defendants Schafer to change venue to Kings County and otherwise affirmed. This action finds its wellspring in a now-questioned settlement of an action in Kings County between plaintiff and defendant Edward J. Schafer. Unlike the other defendants, defendant American Telephone and Telegraph Company (AT&T) had no interest at stake in the Kings County action. The sole reason advanced by plaintiff for laying the venue of this action in New York County is that AT&T has been made a defendant and that is its county of residence. We find, however, that AT&T is not a necessary party. The only relief sought against it, enjoining it from transferring on its books any stock of the defendants Schafer, is as well accomplished by the relief sought against the defendants Schafer enjoining them from transferring their AT& T stock. AT&T’s interest, although affected, will not be affected inequitably (Matter of Castaways Motel v Schuyler, 24 NY2d 120,125). The inclusion of an unnecessary party should not be the sole basis of venue (cf. CPLR 1003). In denying a change of venue Special Term also found that the moving defendants had failed to serve the prior written notice on the plaintiff required by CPLR 511 (subds [a], [b]) but we find no evidence in the record to support this finding. Special Term properly found the complaint, viewed in a light most favorable to plaintiff, to state a cause of action and properly [742]*742denied summary judgment as issue had not then been joined. Concur— Lupiano, J. P., Evans, Lynch and Sullivan, JJ.

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Bluebook (online)

66 A.D.2d 741, 411 N.Y.S.2d 314, 1978 N.Y. App. Div. LEXIS 14016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ovid-v-schafer-nyappdiv-1978.

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