American Builders & Contractors Supply Co. v. Capitaland Home Improvement Showroom, LLC

In an action pursuant to Lien Law § 77 to enforce a trust, the defendants appeal from an order of the Supreme Court, Nassau County (Bucaria, J.), entered August 6, 2014, which denied their motion pursuant to CPLR 510 (1) to change the venue of the action from Nassau County to Saratoga County.

Ordered that the order is reversed, on the law, with costs, the motion to change the venue of the action from Nassau County to Saratoga County is granted, and the Clerk of the Supreme Court, Nassau County, is directed to deliver to the Clerk of the Supreme Court, Saratoga County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511 [d]).

The plaintiff, a foreign corporation authorized to conduct

Notwithstanding the plaintiffs assertions to the contrary, it is a resident of New York County for venue purposes. Indeed, the law is clear that “[f]or purposes of venue, the sole residence of a foreign corporation is the county in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York” (Ashjian v Orion Power Holdings, Inc., 9 AD3d 440 , 440 [2004] [emphasis added]), regardless of where it transacts business or maintains its actual principal office (see CPLR 503 [c]; Business Corporation Law § 102 [a] [10]; Negron v Nouveau El. Indus., Inc., 104 AD3d 655 [2013]; Bailon v Avis Rent A Car, 270 AD2d 439 [2000]; Marko v Culinary Inst. of Am., 245 AD2d 212 [1997]; Di Giovanni v Pepsico, Inc., 91 AD2d 519 [1982]; General Precision v Ametek, Inc., 24 AD2d 757 [1965]). We note that, since the plaintiffs response to the defendants’ demand to change venue failed to set forth factual averments that were prima facie sufficient to show that its designation of Nassau County for trial of the action was proper, the defendants were authorized to notice their motion to change venue to be heard in Saratoga County (see CPLR 511 [b]; HVT, Inc. v Safeco Ins. Co. of Am., 77 AD3d 255 [2010]; Kuzmin v Nevsky, 51 AD3d 639 [2008]; cf. King v CSC Holdings, LLC, 123 AD3d 888 [2014];

In view of the foregoing circumstances, the Supreme Court should have granted the defendants’ motion to change the venue of the action from Nassau County to Saratoga County, despite the fact that an order granting class certification had already been issued in the action. Mastro, J.P., Leventhal, Maltese and Duffy, JJ., concur.