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RAL Supply Group v. Desantis

Supreme Court, Suffolk County

August 26, 2019

The RAL Supply Group, Plaintiff,
v.
John L. Desantis DBA DESANTIS HEATING AND COOLING, Defendant.

          William M. Stein, Esq., Stein & Stein, LLP, One Railroad Square For Plaintiff

          CARMEN VICTORIA ST. GEORGE, J.S.C.

         The following electronically-filed papers were read upon this motion:

         Notice of Motion/Order to Show Cause 5-10

         Answering Papers

         Reply

         Briefs: Plaintiff's/Petitioner's

         Defendant's/Respondent's

         Plaintiff moves this Court unopposed for an Order transferring this action from Supreme Court, Suffolk County to the Supreme Court, Nassau County "due to an e-filing error on behalf of plaintiff." Plaintiff states that this action is brought "to recover an indebtedness due and owing under a Contract." [1]

         The summons states that "[p]laintiff designates Nassau County as the place of trial. The basis of the venue is plaintiff's place of business." [2] The summons and complaint bear the designation of Nassau County Supreme Court in their respective captions; however, the summons and complaint were electronically filed in Suffolk County on March 11, 2019.

         The affidavit of service avers that service of the summons and complaint was made upon the mother of John L. Desantis on May 3, 2019. According to plaintiff's counsel, when the defendant did not submit an answer, counsel attempted to electronically file a default judgment against defendant. It appears from Exhibit C that the attempt to file the default judgment was made on or about June 24, 2019. The proposed Clerk's Judgment was returned by NYSCEF, payment for the judgment was stopped, and NYSCEF personnel (Whitney, E.) wrote, "[y]our summons and complaint states Nassau County. Please upload an amended summons and complaint." Apparently, the discrepancy between the caption of this action and the filing made in Suffolk County was not caught by counsel or NYSCEF personnel when the summons and complaint were filed on March 11, 2019.

         Plaintiff's counsel acknowledges that the error in filing was eventually brought to counsel's attention by NYSCEF personnel. Counsel seeks transfer of this action to Nassau County "without the necessity of refiling the Summons and Verified Complaint or reserving the defendant and e-filing Affidavit of Service in relation to this matter."

         Plaintiff does not articulate a specific statutory or precedential basis upon which it relies for the relief requested; therefore, to determine the instant application, this Court finds it necessary to explore whether there is a proper basis to grant the motion in the context of the unusual circumstances presented here.

         CPLR § 510, which specifies the grounds for a change of venue, does not provide an avenue of relief for plaintiff. Subdivisions 2 and 3 allowing for change of venue based upon a need for an impartial trial and the convenience of material witnesses are not implicated here. Subdivision 1 providing for a change of venue because the county designated for trial is not a proper county is inapposite since Nassau County, which was designated by ...


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