chapter 5 venue, forum non conveniens and...

Chapter 5

VENUE, FORUM NON CONVENIENS ANDREMOVAL

Synopsis

PART A: PROCEDURAL CONTEXT

§ 5.01 Procedural Context—Venue, Forum Non Conveniens andRemoval

PART B: DETERMINING VENUE

§ 5.02 Checklist for Determining Venue

§ 5.03 Determining Venue in Various Actions

[1] Determining Venue in Transitory Actions[2] Determining Venue in Real Property Actions[3] Determining Venue in Actions to Recover Chattel[4] Determining Venue in Actions Based on Consumer

Credit Transactions[5] Chart: Determining Residence of Certain Entities and

Fiduciaries for Purposes of Venue[6] Chart: Determining Venue in Actions Involving Gov-

ernmental Entities and Authorities[7] Chart: Determining Venue in Special Proceedings

§ 5.04 Enforcing Written Agreements Fixing Venue

PART C: CHANGING OR RETAINING VENUE

§ 5.05 Checklist for Moving for Change of Venue

§ 5.06 Moving for Change of Venue

[1] Demanding Change of Venue; Moving for Change ofVenue Based on Designation of Improper County

[2] Moving for Change of Venue Based on Inability toObtain Impartial Trial

[3] Moving for Change of Venue Based on Convenience ofWitnesses and Ends of Justice

§ 5.07 Cross-Moving to Retain Venue

§ 5.08 Appealing from Order Changing Venue

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PART D: FORUM NON CONVENIENS

§ 5.09 Checklist for Moving for Stay or Dismissal Based on ForumNon Conveniens

§ 5.10 Moving for Stay or Dismissal Based on Forum NonConveniens

[1] Determining Basis for Moving for Stay or DismissalBased on Forum Non Conveniens

[2] Evaluating Forum Non Conveniens Motion[a] Standards for Grant of Forum Non Conveniens

Motion[b] Transactions and Agreements Not Subject to Fo-

rum non Conveniens Motions[c] Effect of Forum Selection Clause

PART E: REMOVAL TO ANOTHER NEW YORK COURT

§ 5.11 Checklist for Moving for Removal to Another New YorkCourt

§ 5.12 Moving for Removal to Another New York Court

[1] Moving for Removal Based on Mistake[2] Moving for Removal Based on Request for Additional

Relief

§ 5.13 Removal by Court

[1] Removal Downward by Court on Consent[2] Removal Downward by Court Without Consent

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PART A: PROCEDURAL CONTEXT

§ 5.01 Procedural Context—Venue, Forum NonConveniens and Removal

Venue concerns the county in which an action should be com-menced. It does not concern the power of a court to hear a disputeor jurisdiction over the parties. The general venue provisions arecontained in CPLR Article 5. The proper venue for a particularaction depends on a variety of factors including the nature of theaction and where the parties reside. Certain courts present advan-tages or disadvantages to a particular party. For example, a reviewof jury verdicts in personal injury or medical malpractice actionsreveals that Bronx County and Kings County juries generally returnmuch larger verdicts than do Nassau County or Suffolk Countyjuries.

Selecting the venue can have a significant impact on the outcomeof the case. A successful motion to change venue results in thetransfer of the action to another county. Failure to object to venuewill result in a waiver. The court cannot change venue sua sponte.

A motion for change of venue of an action should not beconfused with a motion to dismiss or stay an action on forum nonconveniens grounds (inconvenient forum). If a court finds that anaction should be heard in another forum, it can “stay or dismissthe action in whole or in part on any conditions that may be just”in the interest of substantial justice. CPLR 327. This codificationof the common law doctrine of forum non conveniens is invokedin cases that have no significant contacts with New York, althoughthere is jurisdiction over the defendant.

The term “removal” as used in this chapter should not beconfused with removal of a state court action to federal court.Rather, it refers to removing an action from one New York statecourt to another. CPLR 325.

§ 5.01VENUE, FORUM NON CONVENIENS AND REMOVAL5–3



PART B: DETERMINING VENUE

§ 5.02 Checklist for Determining Venue

M Bring transitory actions in county in which any party residedwhen action is commenced. CPLR 503(a). See § 5.03[1]below.

M Bring local actions (actions involving title or injury to realproperty) in county in which any part of property is located.CPLR 507. See § 5.03[2] below.

M Bring action to recover chattel (replevin) in county in whichany part of chattel is located. CPLR 508. See § 5.03[3]below.

M If case is brought under specific act or statute, check actor statute for specific venue provisions.

For example, actions based on consumer obligationsare subject to venue provisions of that statute. CPLR503(f). See § 5.03[4] below.

M Determine whether the type of party suing or being suedcontrols or affects venue. Actions subject to specific venuerules include the following:

Actions involving governmental entities and authori-ties. CPLR 504, 505. See § 5.03[6] below.

Actions against executors, trustees, administrators,committees, conservators, or receivers in representativecapacities. CPLR 503(b). See § 5.03[5] below.

Actions against corporations, railroads, unincorporatedassociations, partnerships, or assignees. CPLR 503(c),(d), (e). See § 5.03[6] below.

M Prepare complaint containing allegations sufficient to estab-lish venue. See § 5.03[1] below.

M If action is based on consumer credit transaction, prepareproof of service to file with summons. See § 5.03[4] below.

M File summons and notice in proper court. See § 5.03[4]below.

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M Search Advisor: Civil Procedure > Venue > General Venue

M Investigate Parties on lexis.com®. See § Intro.09 above.

§ 5.03 Determining Venue in Various Actions

[1] Determining Venue in Transitory Actions

A transitory action is one in which venue is determined byresidence, as opposed to real property actions (CPLR 507), actionsto recover a chattel (CPLR 508), or instances where there has beena prior agreement fixing venue (CPLR 501)). Venue in a transitoryaction lies in the county in which one of the parties resided whenthe action was commenced. If none of the parties resides in thestate, the plaintiff may designate the venue. A party who residesin more than one county is deemed a resident of each county. CPLR503(a). But see § 5.03[7] below (special proceedings).

z Strategic Point: The dispositive date for determiningresidency is the date on which the action was commenced.Frequently, however, the allegations in a complaint beginwith the words: “At all times hereinafter mentioned,” andmay not provide the residence of the parties at the timethe action was commenced. A defendant is well advisedto determine early on, by written or oral disclosure, theresidence of the plaintiff at the time the action was com-menced. See § 5.06[1] below (moving for change of venueon the ground that the designated county is improper).

The type of party suing or being sued may also affect venue.See § 5.03[5] below (determining the residence of certain parties,for example, partnerships, corporations). See also § 5.03[6] below(determining the proper venue of actions involving governmentalentities and authorities) and § 5.03[7] below (determining venuein special proceedings).

Frequently, the plaintiff can select from several available venues.Plaintiffs should be aware, however, that a judge who detects“forum shopping” will be more likely to grant a motion for change

§ 5.03[1]VENUE, FORUM NON CONVENIENS AND REMOVAL5–5



of venue. See § 5.06 below. Moreover, losing a motion for changeof venue will be time consuming and potentially costly if the courtorders payment fees and costs or imposes sanctions.

z Strategic Point: Consider witness availability, jurypool, costs, time, availability of records, and potentialjudges, all of which play a role in making an effectivevenue choice.

PRACTICE RESOURCES:

● Weinstein, Korn & Miller, New York Civil Practice: CPLRCh. 503.

● CPLR Manual § 5.02.

● 22 NYCRR § 202.69 (coordination of related actions pend-ing in more than one judicial district).

[2] Determining Venue in Real Property Actions

The proper venue of an action in which the “judgment wouldaffect the title to, or the possession, use or enjoyment of, realproperty” is any county in which a part of the property is located.CPLR 507. A real property action is a local action, as opposedto a transitory action. Common types of real property actionsinclude ejectment, partition, dower, mortgage foreclosure, waste,nuisance, trespass, breach of contract for the sale of real propertyand actions affecting a leasehold interest.

PRACTICE RESOURCES:



[3] Determining Venue in Actions to Recover Chattel

An action to recover chattel, sometimes called a replevin action,may be brought in the county in which any part of the chattel islocated at the time the action is commenced. CPLR 508. The statute

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uses non-mandatory language, that is, “may,” hence the plaintiffmay also use the venue provisions applicable to a transitory action.See CPLR 503(a) and § 5.03[1] above.

If the replevin action concerns a consumer credit transaction,then CPLR 503(f) applies. See § 5.03[4] below.

PRACTICE RESOURCES:



[4] Determining Venue in Actions Based on ConsumerCredit Transactions

If the defendant is a purchaser, borrower, or debtor in an actionarising out of a consumer credit transaction, venue is in the countywhere the defendant resides if within New York, or where thetransaction took place if within New York. CPLR 503(f). If thedefendant is a non-resident and the transaction occurred outsideNew York, CPLR 503(a) (venue in transitory actions) applies. See§ 5.03[1] above.

t Warning: In an action arising out of a consumer credittransaction, the words "Consumer Credit Transaction" areto be displayed prominently at the top of the summons.The clerk will not accept a summons for filing if it appearson the face of the summons that the proper venue is anothercounty. CPLR 513(a). If the rejected summons is thereafterfiled in the proper county, service is complete 10 days afterfiling.

Together with the summons, the plaintiff must also file thefollowing:

1. Proof of service of the summons; and

2. Proof of service by registered or certified mail of a noticesetting forth:

a. Proper county;




b. Date of filing of the summons;

c. Date when the answer or notice of appearance mustbe filed; and

d. Address at which it must be filed.

CPLR 513(c).

In practice, most consumer credit transaction cases are filed inthe inferior civil courts, that is, Civil Court or District Court. Thepractitioner should refer to the rules of those courts for theappropriate venue and filing requirements.

PRACTICE RESOURCES:



● Bender’s Forms for the Civil Practice Form No. CPLR513:1, Form No. CPLR 513:2.

● CPLR 105(f) (definition of consumer credit transaction).

● CPLR 305(a) (summons in actions arising out of consumercredit transactions and the general requirements in SupremeCourt and County Court actions that the summons “bearthe index number assigned and the date of filing with theclerk of the court”).

[5] Chart: Determining Residence of Certain Entitiesand Fiduciaries for Purposes of Venue

PARTY RESIDENCE

Executor, Trustee, County of appointment or where he or sheAdministrator, actually resides. CPLR 503(b).Committee,Conservator, GeneralGuardian,TestamentaryGuardian, Receiver Corporation (domestic Principal office. CPLR 503(c).or foreign corporationauthorized to transactbusiness)




PARTY RESIDENCE

Railroad or Common Principal office or where cause of action arose.Carrier CPLR 503(c). Unincorporated Where president or treasurer suing or being suedAssociation on its behalf actually resides or principal office

of association. CPLR 503(d). Partnership or Principal office or where partner or individualIndividually Owned owner suing or being sued actually resides.Business CPLR 503(d). Assignee In action for sum of money only brought by

assignee, assignee’s residence is deemed thesame as the original assignor at the time oforiginal assignment (exception: assignee forbenefit of creditors or holder in due course ofnegotiable instrument). CPLR 503(e).

PRACTICE RESOURCES:

● Weinstein, Korn & Miller, New York Civil Practice: CPLR¶¶ 503.04, 503.05, 503.06, 503.07, 503.08, 503.12, 503.13,503.14.


● Bender’s Form for the Civil Practice Form No. CPLR503:4, Form No. CPLR 510:9.

[6] Chart: Determining Venue in Actions InvolvingGovernmental Entities and Authorities

ACTIONS AGAINST VENUE

County In county. CPLR 504(1). City (except NYC) In county where city is situated. CPLR 504(2). Town In county where town is situated. CPLR 504(2). Village In county where village is situated. CPLR

504(2). School District or In county where school district or districtDistrict Corporation corporation is situated; if situated in more than

one county, then in each. CPLR 504(2).




ACTIONS AGAINST VENUE

New York City In county where claim arose or if it arose

outside of city, then in New York County.CPLR 504(3).

Public Authority (by County of principal office or where facilitiesor against) involved in action are located. CPLR 505(a). New York City Transit In county within New York City in which causeAuthority of action arose; if cause of action arose outside

of city, then in New York County. CPLR505(b).

PRACTICE RESOURCES:

● Weinstein, Korn & Miller, New York Civil Practice: CPLRChs. 504, 505.


[7] Chart: Determining Venue in Special Proceedings

PROCEEDINGS AGAINST VENUE

Generally Any county within judicial district whereproceeding is triable, except as set forthbelow in CPLR 506(b) or lawauthorizing the proceeding. CPLR 506(a).

Body, Officer In county within judicial district where

determination or refusal made or whereproceedings brought or taken or wherematerial events took place or whereprincipal office of respondent is located,except as set forth below. CPLR 506(b).See CPLR 7804.

Justice or Judge In Appellate Division in Judicial

Department where action is triable; if notin session, then in adjoining department.CPLR 506(b)(1).




PROCEEDINGS AGAINST VENUE

Regents of University of New Supreme Court, Albany County, exceptYork State, the Commissioner as set forth below. CPLR 506(b)(2).of Education, theCommissioner of Taxationand Finance, the Tax AppealsTribunal (but see Tax Law§ 2016), the Public ServiceCommission, theCommissioner or theDepartment of Transportation(relating to particular articlesin the Transportation Law orthe Railroad Law), the WaterResources Board, theComptroller, or Department ofAgriculture and Markets Commissioner of Education In the Supreme Court in the petitioner’sconcerning children with county of residence, or in Albany Countyhandicapping conditions as set forth above. CPLR 506(b)(3). New York City Tax Appeals Appellate Division, First Department.Tribunal CPLR 506(b)(4).

PRACTICE RESOURCES:



§ 5.04 Written Agreements Fixing Venue

Written agreements fixing venue made before the action iscommenced may be enforced by bringing a motion to changevenue. The motion will be successful unless the court is convincedthat an impartial trial in the selected venue “cannot be had.” CPLR501, 510(2).




PRACTICE RESOURCES:






PART C: CHANGING OR RETAINING VENUE

§ 5.05 Checklist for Moving for Change of Venue

M Determine whether change of venue is necessary or wouldbenefit client. See §§ 5.03, 5.04 above.

M Determine whether venue was proper when and where casewas filed by analyzing applicable venue statutes. CPLR 501,503, 507, 508. See §§ 5.03, 5.04 above.

M Ascertain whether any of the following grounds for changeof venue apply: CPLR 510.

Action not filed in proper court. See § 5.06[1] below.

Impartial trial cannot be had. See § 5.06[2] below.

Convenience of witnesses and ends of justice requirechange of venue. See § 5.06[3] below.

M Draft motion for change of venue, supporting affidavits andproposed order. See § 7.02 below.

M Serve and file motion following standard procedures fornoticed motions. See § 7.02 below.

M Search Advisor: Civil Procedure > Venue > Change ofVenue Generally

§ 5.06 Moving for Change of Venue

[1] Demanding Change of Venue; Moving for Change ofVenue Based on Designation of Improper County

If plaintiff designates venue in the wrong county, it is imperativethat the defendant act quickly.

s Timing: Defendant must serve a demand for changeof venue, specifying the proper county, before or with theanswer. CPLR 511(a).

If within five days after service of the demand, the plaintiff doesnot consent to the change, the defendant may move within 15 days




of service of the demand to change venue. The defendant maynotice the motion in the county defendant specifies as proper, orin the county in which the action was commenced. However, ifthe plaintiff, within five days of service of the demand, serves anaffidavit showing either that the county specified by the defendantis improper or that the county designated by the plaintiff is proper,the defendant must bring the motion in the county in which theaction is pending. CPLR 511(b).

The motion for change of venue will be granted unless theplaintiff can show via a cross-motion that an impartial trial cannotbe had in the county designated by defendant or the convenienceof witnesses and the interests of justice will not be served by thechange.

After the answer is filed, the court has discretion to reject amotion for change of venue on the basis that the county designatedis improper.

PRACTICE RESOURCES:



● Bender’s Form for the Civil Practice Form No. CPLR503:1, Form No. CPLR 503:2, Form No. CPLR 503:5.

[2] Moving for Change of Venue Based on Inability toObtain Impartial Trial

A motion for change of venue may also be based on a party’sinability to obtain an “impartial trial” in the pending venue. CPLR510(2). The motion should be made “within a reasonable time aftercommencement of the action.” CPLR 511(a). A motion on thesegrounds must be made in the county in which the action is pending.

PRACTICE RESOURCES:

● Weinstein, Korn & Miller, New York Civil Practice: CPLR¶ 510.11.





[3] Moving for Change of Venue Based on Convenienceof Witnesses and Ends of Justice

The most prevalent ground for a motion for change of venueis the convenience of witnesses. The motion should be made“within a reasonable time after commencement of the action. CPLR571(a). Generally, the courts are more concerned with the conve-nience of certain witnesses as opposed to others; for example, theconvenience of non-parties as opposed to parties, and fact witnessesas opposed to expert witnesses.

z Strategic Point: If a motion for change of venue isbased on the convenience of witnesses, the movant shouldinclude an affidavit setting forth the identity, addresses,and occupations of the proposed witnesses, their expectedtestimony, the need for their testimony, and the actualinconvenience the witnesses will experience. Ideally, thewitnesses should submit affidavits. If that is not practical,the practitioner should consider hiring an investigator toconduct interviews of the witnesses and submit the investi-gator’s affidavit detailing the interviews. If neither of theseoptions is feasible, the practitioner should prepare anaffidavit or affirmation with as much detail as possible.

PRACTICE RESOURCES:



● Feldman v. North Shore Univ. Hosp., 157 A.D.2d 831, 550N.Y.S.2d 420 (2d Dep’t 1990) (motion to change venuedenied because defendant failed to demonstrate that non-party witnesses would be inconvenienced by having trialin adjacent county).

● Wecht v. Glen Distribs. Co., 112 A.D.2d 891, 493 N.Y.S.2d313 (1st Dep’t 1985) (convenience of parties and theiremployees not considered on change of venue motion).




§ 5.07 Cross-Moving to Retain Venue

In opposing a motion to change venue, the plaintiff should servea notice of cross-motion to retain venue with the opposition papers.

PRACTICE RESOURCES:

● Bender’s Form for the Civil Practice Form No. CPLR503:3, Form No. CPLR 503:4, Form No. CPLR 503:6.

§ 5.08 Appealing from Order Changing Venue

An appeal from an order changing venue must be taken in thedepartment in which the motion for change of venue was heardand determined. CPLR 511(d).

PRACTICE RESOURCES:

● Weinstein, Korn & Miller, New York Civil Practice: CPLR¶¶ 511.10, 511.11.





PART D: FORUM NON CONVENIENS

§ 5.09 Checklist for Moving for Stay or DismissalBased on Forum Non Conveniens

M Determine if defendant should move to stay or dismissaction on grounds of inconvenient forum. CPLR 327. See§ 5.10[1] below.

M Consider whether action may be more appropriately andjustly tried elsewhere. See § 5.10[2] below. Factors toconsider include the following:

Residence of parties.

Place where transaction occurred.

Burden on New York courts.

Potential hardship to defendant.

Availability of alternative forum.

Location and convenience of material witnesses.

Location of material documents and evidence.

Plaintiff’s interests.

Assignee status of plaintiff.

Applicability of foreign law.

Foreign forum having substantial interest in adjudicat-ing action.

M Determine whether alternative forum is suitable place fortrial. See § 5.10[2] below.

Weigh advantage of plaintiff’s choice of forum.

Weigh advantage of alternate forum.

M Prepare notice of motion to stay or dismiss the action andaccompanying papers. See § 7.02 below.

M Search Advisor: Civil Procedure > Venue > Forum NonConveniens




§ 5.10 Moving for Stay or Dismissal Based on ForumNon Conveniens

[1] Determining Basis for Moving for Stay or DismissalBased on Forum Non Conveniens

Forum non conveniens, like venue, affects neither subject matterjurisdiction nor personal jurisdiction. It is invoked in those in-stances in which the case has no significant contact with New York,for example, if jurisdiction was obtained over the defendant throughtagging. See § 2.03[2] above. Unlike a motion for change of venue,a motion relating to forum non conveniens can result in thedismissal or stay of the action. CPLR 327. A forum non conveniensmotion must be made promptly. The court cannot, sua sponte,dismiss or stay the action on forum non conveniens grounds.

PRACTICE RESOURCES:

● Weinstein, Korn & Miller, New York Civil Practice: CPLR¶ 327.02.


[2] Evaluating Forum Non Conveniens Motion

[a] Standards for Grant of Forum Non ConveniensMotion

The standards that apply to the grant of a forum non conveniensmotion are vague. Nevertheless, in ruling on a forum non conve-niens motion, the court will consider the following factors, amongothers:

1. Residence of the parties. See Silver v. Great Am. Ins. Co.,29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972)(party’s residence in New York is merely a factor to beconsidered; plaintiff’s residence is a significant factor). SeeCPLR 327(a).

2. Place where the transaction out of which the cause of actionarose occurred.

3. Burden on New York courts.

4. Potential hardship to the defendant.




5. Availability of an alternative forum. See Varkonyi v. S.A.Empresa de Viacao A.R.G. (Varig), 22 N.Y.2d 333, 292N.Y.S.2d 670, 239 N.E.2d 542 (1968) (absence of any otherforum in which both defendants could be joined was factorto be considered). See also Islamic Republic of Iran v.Pahlavi, 62 N.Y.2d 474, 478 N.Y.S.2d 597, 467 N.E.2d 245(1984), cert. denied, 469 U.S. 1108, 105 S. Ct. 783, 83 L.Ed. 2d 778 (1985) (not an abuse of discretion as a matterof law to grant motion even though no other forum mightbe available).

6. Location and convenience of material witnesses.

7. Location of material documents and evidence.

8. Plaintiff’s interests.

9. Assignee status of the plaintiff.

10. Applicability of foreign law. See Shin-Etsu Chem. Co., Ltd.v. ICIC Bank Ltd., 9 A.D.3d 171, 178, 777 N.Y.S.2d 69,74 (1st Dep’t 2004) (“The applicability of foreign law isan important consideration in determining a forum nonconveniens motion and weighs in favor of dismissal.”)

11. Foreign forum having substantial interest in adjudicatingaction. See Shin-Etsu Chem. Co., Ltd. v. ICIC Bank Ltd.,9 A.D.3d 171, 178, 777 N.Y.S.2d 69, 74–75 (1st Dep’t2004).

The court can deny the motion, or grant the motion and eitherstay or dismiss the action with or without conditions, such as thewaiver of a defense of statute of limitations or the acceptance ofservice of process in another jurisdiction.

[b] Transactions and Agreements Not Subject toForum non Conveniens Motions

If the action relates to a contract, agreement, or undertaking thatis covered by GOL § 5-1402, a forum non conveniens motioncannot be granted. CPLR 327(b). GOL § 5-1402 covers thefollowing:

1. Transactions involving more than $1,000,000;

§ 5.10[2][b]VENUE, FORUM NON CONVENIENS AND REMOVAL5–19



2. Contracts, agreements, or undertakings that have a NewYork forum selection clause; and

3. Contracts, agreements, or undertakings that specify thatNew York law should govern (choice of law provision).

[c] Effect of Forum Selection Clause

t Warning: The practitioner should be careful to distin-guish between mandatory forum selection clauses andpermissive forum selection clauses or service of suitclauses.

Generally, mandatory forum selection clauses will be enforcedto defeat a forum non conveniens motion, regardless of the presenceor absence of the factors enumerated above. See § 5.10[2][b]above. See, e.g., Arthur Young & Co. v. Leong, 53 A.D.2d 515,383 N.Y.S.2d 618 (1st Dep’t 1976), appeal dismissed, 40 N.Y.2d984, 390 N.Y.S.2d 927, 359 N.E.2d 435 (1976) (trial court abusedits discretion by failing to consider agreement between parties asto the forum in which disputes had to be adjudicated).

A permissive forum selection clause, on the other hand, “doesnot manifest an intention to limit jurisdiction to a particular forum.”See Brooke Group Ltd. v. JCH Syndicate 488, 87 N.Y.2d 530, 534–535, 640 N.Y.S.2d 479, 482, 663 N.E.2d 635 (1996) (service ofsuit clause obligating defendant to “submit to the jurisdiction ofa Court of competent jurisdiction within the United States” did notpreclude dismissal on forum non conveniens grounds).

PRACTICE RESOURCES:



● Bender’s Form for the Civil Practice Form No. CPLR 327:1et seq.

● Martin v. Mieth, 35 N.Y.2d 414, 362 N.Y.S.2d 853, 321N.E.2d 777 (1974) (imposing conditions on grant of motion

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to dismiss on forum non conveniens grounds, includingdefendant’s agreement to accept service and appear inCanadian action and not to plead statute of limitationsdefense).

● Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L. Ed. 2d 622 (1991) (evaluating enforceabil-ity of forum selection clause).

§ 5.10[2][c]VENUE, FORUM NON CONVENIENS AND REMOVAL5–21



PART E: REMOVAL TO ANOTHER NEWYORK COURT

§ 5.11 Checklist for Moving for Removal to AnotherNew York Court

M Consider whether action should be removed to another NewYork court. CPLR 325. See § 5.12 below.

Determine if mistake was made in selecting court inwhich to commence action. CPLR 325(a). See§ 5.12[1] below.

Evaluate whether party is entitled to additional reliefbeyond court’s jurisdiction. CPLR 325(b). See§ 5.12[2] below.

M Make motion in court that has jurisdiction. See § 7.02below.

Prepare notice of motion to remove and accompanyingpapers.

File affidavits describing changes in circumstancesjustifying demand for additional relief.

M Determine whether damages appear to be less than thosedemanded in the complaint and are within the jurisdictionof lower court. See § 5.13[1] below.

Reduce amount of damages demanded to amountwithin jurisdiction of lower court.

Obtain consent of parties to removal to lower court.CPLR 325(c).

If consent cannot be obtained, court may remove casedown without consent. CPLR 325(d). See § 5.13[2]below.

M Search Advisor: Civil Procedure > Venue > Generally




§ 5.12 Moving for Removal to Another New YorkCourt

[1] Moving for Removal Based on Mistake

If a mistake was made in choosing a particular court in whichto commence the action, the Supreme Court can remove the actionto the proper court, on motion, on such terms as may be just. CPLR325(a). For example, if the plaintiff sues in an amount that exceedsthe jurisdictional limits of the court in which the action wascommenced, on motion the case can be removed to a higher court.

PRACTICE RESOURCES:


● CPLR 325(e) (removal from Supreme Court to Surrogate’sCourt); CPLR 325(f) (removal from County Court to Su-preme Court); CPLR 325(g) (transfer from one local courtto another).

[2] Moving for Removal Based on Request forAdditional Relief

If the court where the action was commenced lacks jurisdictionto grant the relief that the parties are entitled to, the case can beremoved to a court having jurisdiction. The motion is made to thecourt that has jurisdiction. If a jury trial is waived in the first court,it has no effect after removal. CPLR 325(b). For example, if theplaintiff brings an action in a lower court believing the damagesto be less than the jurisdictional limit of the lower court but laterdiscovers that the case is more serious, plaintiff may move forremoval. Such a motion, typically in personal injury actions, shouldbe made promptly and should include affidavits describing theapparent change in the plaintiff’s condition.

PRACTICE RESOURCES:





§ 5.13 Removal by Court

[1] Removal Downward by Court on Consent

If it appears that the damages sustained are less than thoseoriginally demanded in the complaint and are within the jurisdic-tional limits of a lower court, the court where the action is pendingcan remove the case to the lower court. If all of the parties consentto the removal, any subsequent award will be limited to thejurisdictional limits of the lower court. CPLR 325(c). Consent isnot required of a defendant who did not assert a counterclaim and“over whom the lower court would have had jurisdiction if theaction had originally been commenced there.” CPLR 325(c). If ajury trial was waived in the first court, it has no effect after removal.

PRACTICE RESOURCES:


[2] Removal Downward by Court Without Consent

A court may remove a case down to a lower court without theconsent of the parties if “it appears that the amount of damagessustained may be less than demanded.” CPLR 325(d). In such acircumstance, the jurisdictional limits of the higher court remainin effect and the verdict or judgment can exceed the jurisdictionallimits of the lower court. If a jury trial was waived in the first court,it has no effect after removal.

PRACTICE RESOURCES:


● Offner v. Rothschild, 87 Misc.2d 565, 386 N.Y.S.2d 188(Sup. Ct. Kings County 1976) (court has inherent powerto send case down without consent and limit damages tojurisdictional limits of lower court).



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chapter 5 venue, forum non conveniens and...

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