National Can Corporation, Plaintiff, v. Sunset Frozen Foods, Inc., Defendant, 44 Misc. 2d 429

Matthew J. Jasen, J. This is a motion to change the venue from New York County to Chautauqua County. Plaintiff corporation commenced this action on September 14, 1964, in the Supreme Court of New York County. Thereafter, defendant served upon plaintiff’s attorney a demand for change of venue from New York County to Chautauqua County. Within five days of the service of said demand, plaintiff served upon defendant an affidavit showing that New York County is a proper county for this action. Now, defendant brings this motion in Chautauqua County to change the venue from New York County to Chautauqua County.

CPLR 511 (subd. [b]) states: “ Demand for change of place of trial, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after .service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified, by the defendant.

Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper.” Where plaintiff has complied fully with the requirements of said section, then the defendant must make his motion for a change of venue in the court from which he desires to move. (See Samuels v. Empire Paper Goods Co., 91 N. Y. S. 2d 67; Linder v.

Elmira Assn. of Commerce, 192 Misc. 830.) Therefore, since defendant’s motion should properly he made in New York County, the order to show cause is vacated.