Historically, except in cases involving municipal defendants, the CPLR allowed plaintiffs to bring their actions in any county where a party to the action resided. Late last year, Governor Cuomo signed a bill amending the applicable provision of the CPLR to expand the options for where a case may be venued. In this column, we discuss the amendment, the legislative justifications behind it, and its significance for personal injury cases.
The placement of venue is governed by CPLR 503. As amended, CPLR 503(a) provides as follows (the text that was recently added is in italics):
(a) Generally. Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county.
The amendment allows a plaintiff to bring his or her action in a county where “a substantial part of the events or omissions giving rise to the claim” occurred—even if no party resides in that county.
The sponsor of the bill in the New York State Senate, Sen. Michael Razenhofer, submitted a memorandum, in which he explained the intention of the legislation. The memorandum took issue with the existing system, which was based purely on the residence of parties. He argued that the existing system could prevent the jurisdiction with the greatest interest in the dispute from having a say in its resolution. He wrote: “This means that, absent residence of a party in the subject county, that county’s court system has no authority to hear controversies about unsafe premises, unsafe worksites, unsafe driving and a myriad of other scenarios within its borders.” The memorandum stated that the bill’s language was intended to track the wording of the venue statute for federal courts: “This bill will also bring New York into conformance with federal courts which currently allow venue in ‘a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred’” (citing 28 U.S.C. §1391(b)(2)). The new language in the CPLR relating to substantial contacts is identical to that used in the federal statute. See Memorandum, available at https://www.nysenate.gov/legislation/bills/2017/s6031 (last accessed July 16, 2018).
The memorandum submitted by the bill sponsor in the Assembly, Assemb. Linda Rosenthal, invoked the same concerns. It noted the importance of allowing the community most affected by the events underlying a case to have a potential stake in its resolution, and expressed the desire to track the federal statute that allowed venue in a jurisdiction where a “substantial part” of the events or omissions at issue had taken place. See Memorandum, available at http://nyassembly.gov/leg/?bn=A08032&term=&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y (last accessed July 16, 2018).
Some of the implications of the amendment are straightforward. If a motor vehicle or premises accident takes place in a particular county, the lawsuit almost certainly may be filed there—even if the plaintiff and defendant both reside elsewhere. Take the following example: A corporation whose principal place of business is in Westchester owns a building in Manhattan, and fails to maintain the sidewalk abutting it in a reasonably safe condition. The plaintiff, a resident of Nassau, falls on the sidewalk and is injured. The plaintiff may bring the action in New York County, even though no party resided there, because a “substantial part of the events or omissions giving rise to the claim” occurred in that jurisdiction. The same will be true in motor vehicle accidents; the location of the accident will be proper venue.
However, in some kinds of cases, the venue calculus will not be as clear. There is a lack of case law from New York State courts as to how the statute should be interpreted, due to the recent vintage of the amendment. However, given the legislature’s stated intention to bring New York’s venue rules into “conformance” with the federal statute, it is useful to look to federal case law for guidance.
The Second Circuit Court of Appeals has cautioned “courts to take seriously the adjective ‘substantial’” in determining whether there have been contacts with a particular jurisdiction to venue an action there. Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005). In evaluating whether venue is proper, courts engage in a “two-part inquiry.” Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d 408, 432 (2d Cir. 2005). First, a court “should identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to those claims.” Second, “the court should determine whether a substantial part of those acts or omissions occurred in the district where suit was filed, that is, whether significant events or omissions material to those claims have occurred in the district in question.” Id. (internal quotation marks and alterations omitted). This is “more a qualitative than a quantitative inquiry, determined by assessing the overall nature of the plaintiff’s claims and the nature of specific events or omissions in the forum, and not by simply adding up the number of contacts.” Marshall v. Annucci, 2018 WL 1449522, at *10 (S.D.N.Y. 2018) (quoting Daniel, 428 F.3d at 432).
In short, the inquiry is directed to the particular allegations of liability the plaintiff has made in the case. It seeks to identify what, in particular, the plaintiff is alleging the defendant did wrong, and then seeks to determine where that conduct took place. This analysis is obviously highly specific to the facts at issue in a case. We will discuss several cases in which plaintiffs brought actions in jurisdictions that had arguably attenuated contacts with the events underlying the litigation, and how the courts resolved the question of whether their choices of venue had been proper.
In Fisher v. Intl. Student Exchange, 38 F.Supp.3d 276 (E.D.N.Y. 2014), the plaintiff, a German exchange student, had been placed with an American family in Montana by defendant ISE. He reported to his exchange program representative, who was in Montana, that he had been sexually abused by a member of the family. The representative, in turn, reported the incident to ISE’s main office, which was located in New York, and the plaintiff was removed from the home the next day. The plaintiff brought suit in the Eastern District of New York, based on the location of defendant’s main office. The court held that venue was improper. The plaintiff’s claims, the court reasoned, “center around the alleged sexual abuse of Plaintiff … and ISE’s failure to protect Plaintiff, all of which occurred in Montana.” Although ISE’s corporate headquarters were located in New York, its representatives who were monitoring plaintiff were “located in Montana during the events giving rise to this action.” Thus, the court held, the events underlying the lawsuit were not sufficiently related to New York to permit venue here. Obviously, in New York State court, the location of the corporation would be a proper venue. The federal courts follow different venue rules. We discuss the case only to illustrate the meaning of the language relating to substantial contacts.
In Cold Spring Harbor Lab. v. Ropes & Gray, 762 F.Supp.2d 543, 545 (E.D.N.Y. 2011), the plaintiff had retained the defendant law firm to represent it in a patent application. The plaintiff’s intellectual property bore some similarity to a previously filed patent, and therefore needed to be distinguished from it. Nonetheless, the attorney handling the matter, whose office was located in Massachusetts, copied approximately 11 pages of text from the similar patent into the plaintiff’s application, including the description of what the plaintiff was attempting to patent. The patent office denied the plaintiff’s application, on the basis that it was too similar to the existing patent, noting that its description was “essentially verbatim” identical to the one that previously had been filed.
The plaintiff brought suit in the Eastern District of New York. The attorney primarily responsible for handling the case had been based in the defendant law firm’s Massachusetts office. But the law firm and plaintiff had met in the plaintiff’s office on Long Island and, a number of times, at the law firm’s office in Manhattan. They had also traded e-mails and written correspondence to each other from their respective locations; thus, the defendant would have written letters to the plaintiff’s office in New York, with the obvious intention that they be received and relied upon there. The court held that these contacts were insufficient. The attorney had performed the “majority of his work” drafting the patent application from his office in Massachusetts. Thus, it held, “because the Defendants did not commit any of the alleged acts or omissions underlying the legal malpractice claim in the Eastern District of New York, and any relevant communications were tangential to the legal malpractice claim, venue is not proper in the Eastern District of New York.” Id. at 559.
By contrast, in Gil v. Bernard & Yam, 2018 WL 443339 (E.D.N.Y. 2018), the plaintiff, a French citizen, had immigrated to the United States to work as a physician in Washington, D.C. She had entered on an H1-B visa, which entitled her to remain in the country legally based on her employment. She retained the defendant law firm, which was based in Queens, to represent her in connection with an application to extend her visa, and later, for a green card. The defendant law firm allegedly committed a number of errors in the handling of both applications, resulting, ultimately, in the plaintiff losing her legal status in the country and her employment. She brought suit in the Eastern District of New York. She contended that venue was proper there because the defendant law firm’s office was in Queens, and, upon information and belief, a “substantial part of the work on [her] immigration applications” and the “communications with her” took place from there. The defendants argued that the action should have been venued in Washington, D.C., because that was “the place where the benefits of [the] work were to be incurred.” The court denied the motion. It found that the plaintiff had sufficiently demonstrated that venue was proper.
New York courts are likely to follow similar rules in determining whether a case’s relationship to a given jurisdiction was substantial enough to support venue there, based on the identical language of the statutes and the legislature’s expressed intention to adopt a system akin to the federal framework. When bringing cases involving either legal or medical malpractice, plaintiffs’ attorneys should consider whether additional venue options are presented based upon where the acts or omissions from which the action arises took place. There may also be additional venue options presented in, to offer some examples: products liability cases, based on where the product was distributed or sold; cases involving negligent repairs to vehicles or equipment, based on where the repair was conducted; or in cases in which particular corporate policy decisions led to adverse outcomes, based, perhaps, on where the policy decision was made.
When placing venue, plaintiffs should bear in mind a flip side to this coin. While the statute sometimes will provide additional options for placing venue in the first instance, it also increases the potential downside of choosing an improper venue. If a plaintiff has designated an improper venue, the defendant may, pursuant to CPLR 511(b), demand that the action be tried in “a county he specifies as proper.” As a result of the amendment, a defendant now may, when invoking CPLR 511(b), attempt to move the action to a county in which it claims a substantial part of the alleged acts or omissions underlying the lawsuit took place.
It is also worth noting how the statute appears to treat cases where no party resides in the state. Before the recent amendment, CPLR 503(a) provided that, if no party was a New York State resident, the action could be placed “in any county designated by the plaintiff.” This catch-all came about by conceptual necessity. Since the venue rules were based solely on party residence, without this option, there would be nowhere the action could properly be brought if no party resided in the state. The amended statute states that that an action may be placed “in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff.” The word “or” is somewhat awkwardly placed in this context, because the preceding categories now encompass all possible cases. But by using it, the statute appears to allow plaintiffs in cases where no party resided in the state to continue to select any county they wish. They are not bound only to the county or counties in which the acts or omissions underlying the case took place.
In short, the amendment to the CPLR is most clearly significant in cases involving premises or motor vehicle accidents as well as construction site accidents. In these instances, the location where the accident took place should be considered as an option. In other kinds of cases, attorneys selecting venue should consider the potential applicability of the newly added statutory language. As the legislative sponsors intended, it will permit practitioners to place cases in the counties with the greatest relationship to their facts, and the most direct interest in their outcomes.
Robert S. Kelner is senior partner at Kelner and Kelner. Gail S. Kelner is an attorney with the firm. Joshua D. Kelner, an attorney with the firm participated in the writing of the column.