CPLR 510 and 511

The First Department denied defendant's motion to change venue, in Kurfis v. Shore Towers Condominium, which was decided on February 19, 2008. The action was improperly venued in Bronx County since plaintiff and defendants reside in Queens County and the action arose in Queens. However, for a change in venue based on plaintiff's designating an improper county, pursuant to CPLR 510[1], the demand must be served with or prior to the answer, pursuant to CPLR 511[a]. Here, the demand was served more than a year after joinder of issue. The court rejected defendants' argument that their untimely service of the demand resulted from plaintiff's misleading statements regarding residence or from active efforts to conceal her residence. The complaint did not misstate plaintiff's residence, but was silent as to her residence.

New York practice points: (1) Since the demand was ineffective, plaintiff was not required to respond. (2) Even though venue is improper, there is no jurisdictional impediment to conducting the trial in Bronx County.