Rose v. Grow-Perini — 271 A.D.2d 210

Majority

p. 210

Paul Rose et al., Appellants, v Grow-Perini, a Joint Venture, et al., Respondents. Dwayne McClendon et al., Appellants, v City of New York et al., Respondents.

[706 NYS2d 326]

—Order, Supreme Court, Bronx County (Jerry Crispino,

p. 211

J.), entered September 28, 1998, which, insofar as appealed from, directed that the subject actions pending in Bronx County and New York County be jointly tried in New York County rather than Bronx County, unanimously affirmed, without costs.

CPLR 504 (3), which provides that the place of trial of an action against the City of New York shall be the county within the City where the cause of action arose, implements the public policy of giving all due consideration to the convenience of public officials, and should be complied with absent compelling countervailing circumstances (see, Powers v East Hudson Parkway Auth., 75 AD2d 776 , 777; Rogers v U-Haul Co., 161 AD2d 214 , 215). Assuming the validity of plaintiffs’ purported discontinuance of the New York County action against the City, the City remains a defendant on cross claims asserted against it in that action, and therefore, in accordance with CPLR 504 (3), the place of trial should be in New York County where the cause of action arose. That the Bronx County action, in which the City was never named a defendant, was instituted before the New York County action is not so compelling a circumstance as to override CPLR 504 (3). Concur — Sullivan, P. J., Nardelli, Tqm, Mazzarelli and Wallach, JJ.

Cases cited

Powers v. East Hudson Parkway Authority 75 AD2d 776 N.Y. App. Div. 1980-05-22 at 777 p. 211
Rogers v. U-Haul Co. 161 AD2d 214 N.Y. App. Div. 1990-05-03 at 215 p. 211