Winston v. Krinsky

30 A.D.2d 524, 290 N.Y.S.2d 247, 1968 N.Y. App. Div. LEXIS 3900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1968
• Status: Published

Opinion

Order, entered November 6, 1967, unanimously reversed, on the law and on the facts, and in the exercise of discretion, with $30 costs and disbursements to defendants-appellants, and defendants’ motion for change of venue to Suffolk County granted. Although this is in form a stockholder’s derivative action brought by an alleged resident of New York County, certain causes of action are specifically intended to compel defendants to reconvey to the interested corporations certain real property which is situated in Suffolk County and which was allegedly purchased for the corporations or in which corporate funds are invested. Plaintiff also seeks to enjoin the transfer of the property or the creation of liens or incumbrances thereon and to procure the appointment of a Receiver to take possession of the property pending the action. Clearly, the judgment sought in the action would “ affect the title to, or the possession, use or enjoyment of ” the Suffolk County real property. On this basis, the place of trial of the action should have been placed in Suffolk County. (CPLR 507; see Dair Bldg. Constr. Co. v. Mayer, 27 A D 2d 535; Grace v. Deepdale, Inc., 3 A D 2d 397.) In the circumstances here, it was an improvident exercise of discretion for Special Term to deny the motion for the change of venue, to the proper county. Concur — Stevens, J. F., Eager, Capozzoli and Bastow, JJ.