Warren v. Cedar Hill Cemetery Ass'n

277 A.D.2d 371, 717 N.Y.S.2d 213, 2000 N.Y. App. Div. LEXIS 12110

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 2000
• Status: Published

Opinion

—In an action, inter alia, to recover damages for fraud and breach of contract, the defendants appeal from an order of the Supreme Court, Orange County (Owen, J.), dated October 5, 1999, which denied their motions pursuant to CPLR 8018 (a) to require each plaintiff to commence a separate action, and to require the out-of-State plaintiffs to provide security for costs.

Ordered that the order is affirmed, with costs.

CPLR 8018 (a) provides that the County Clerk shall be paid a fee of $170 “for the assignment of an index number to an action” pending before the court. It is not disputed that this action is a single action pending before the court. Neither the CPLR nor any case law requires the payment of additional index number fees in a case where, as here, there are multiple plaintiffs.

In any event, the court correctly concluded that the defendants’ motion, insofar as it requests that each plaintiff commenee a separate action, was premature under the circumstances — even had it been properly brought to correct an alleged misjoinder under CPLR 1003 (see, e.g., Akely v Kinnicutt, 238 NY 466; cf., Annunziato v City of New York, 224 AD2d 31, 41; Bender v Underwood, 93 AD2d 747; Korren v Lilly & Co., 150 Misc 2d 429; CPLR 1002 [a]).

Orange County is the proper venue for this action, as many of the plaintiffs and one of the defendants reside in Orange County (see, e.g., Smith v Spencer, 182 Misc 767; CPLR 503 [a]).

Finally, where the majority of the plaintiffs are New York State residents, the court correctly denied the defendants’ motion to require the out-of-State plaintiffs to provide security for costs (see, Salimoff & Co. v Standard Oil Co., 259 NY 219). O’Brien, J. P., Thompson, S. Miller and Feuerstein, JJ., concur.