Preview:

Supreme Court, Putnam County, March 30, 2011
APPEARANCES OF COUNSEL
Daniels & Porco, LLP, Carmel (Andrew D. Brodnick of counsel), for plaintiff. Hogan & Rossi, Brewster (David Simon of counsel), for defendant.
{**32 Misc 3d at 331} OPINION OF THE COURT
Lewis J. Lubell, J.
Plaintiff commenced this partition action in connection with a Putnam County residence known by the street address of 520 Croton Falls Road, Carmel, New York. There is no dispute that, since the judgment demanded in the complaint "would affect the title to, or the possession, use or enjoyment of, real property" situated in Putnam County, venue was properly initiated in Putnam County pursuant to CPLR 507. [*2]
By way of verified answer, defendant advances a counterclaim seeking partition of a New York County property. This property, a condominium, is identified by the street address of 172 West 79th Street, apartment 4A, New York, New York. In contrast to plaintiff's partition claim wherein there is no issue that the Putnam County residence is owned by both parties, by way of reply to counterclaim, plaintiff avers that the New York County condominium is, in fact, her sole property which had been placed in the names of plaintiff and defendant "in order to resolve any question that plaintiff was entitled to subscribe to [an underlying] condominium offering plan." Notwithstanding that distinction, CPLR 507 is still implicated (see Singh v Becher, 249 AD2d 154 [1st Dept 1998]; Weinstock v Cleary, Gottlieb, Steen & Hamilton, 224 AD2d 611 [2d Dept 1996]).
Plaintiff now moves for an order pursuant to CPLR 603 severing defendant's counterclaim and transferring the venue thereof to New York County pursuant to CPLR 511 (b), the county in which the property which is the subject of the counterclaim is situated.
The novel issue raised by said motion is whether the venue provisions of the complaint control where, as here, application of the mandatory venue provisions of CPLR 507 to a partition claim contained in the complaint and to another contained in the counterclaim point to two different counties. The court answers the question in the negative.
Generally, the complaint governs venue without regard to counterclaims (Taconic Inn Corp. v Holsapple, 188 Misc 322 [1946]). This is not so, however, where the nature of the counterclaim is subject to mandatory venue requirements in which case the counterclaim is determinative (see Sabo v Candero, 7 Misc 3d 1013[A], 2005 NY Slip Op 50583[U] [Sup Ct, Rockland County 2005], citing Papp v Moutsinas, 188 AD2d 868 [3d Dept 1992] [counterclaim affecting real property within{**32 Misc 3d at 332} meaning of CPLR 507 results in denial of defendant's motion for change of venue]; Sterling Commercial Corp. v Bradford, 32 AD2d 952 [2d Dept 1969] [fact that the demand for judgment of partition is contained in a counterclaim rather than complaint does not change result]; Zaczek v Zaczek, 27 Misc 2d 740 [1961], affd 14 AD2d 808 [2d Dept 1961] [change of venue of entire action affirmed where counterclaim sought partition]; Nicoletto v Pettit Supply Corp. of Huntington, 254 App Div 750 [2d Dept 1938] [change of venue granted to county in which real property is located where counterclaim falls under Civil Practice Act

Download 2011_21156.pdf

New York Law