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STATE OF NEW YORK SUPREME COURT
COUNTY OF ONONDAGA
ROBERT DAVIS and MICHAEL LANG,
DECISION and ORDER
JAMES BOEHEIM and SYRACUSE UNIVERSITY,
RJI 33-12-0163 INDEX NO. 2012-0255 Defendants.
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Decision and Order on motion before the Hon. Brian F. DeJoseph, Justice of the
Supreme Court) on the
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21 st day of February, 2012.
For the Plaintiffs:
CUTI HECKER WANG, LLP 305 Broadway, Suite 607 New York, New York 10007 BY: l\1ARIANN MEIER WANG,ESQ. , JULIE EHRLICH, ESQ. Of Counsel.
HANCOCK ESTABROOK, LLP 1500 AXA Tower I 100 Madison Street Syracuse, New York 13202, ' BY: TIMOTHYP.MURPHY,ESQ.
'For the Defendant-Boeheim:
For the Defeadant-Boeheim;
DINSMORE & SHOHL LLP
One Oxford Centre 301 Grant Street, Suite 2800 Pittsburgh. Pennsylvania 15219
C. JAMES ZESZVTE~ Of Counsel.
'" Motion for admission pro hac vice to be filed For the Defendant-Syracuse University
DEBEVOISE & PLIMPTON LLP
919 Third Avenue New York, New York 10022
MARY BETH HOGAN, ESQ. ANDREW M. LEVINE, ESQ. Of Counsel.
There are two motions currently pending before this Court. Defendants, James Boeheim and Syracuse University. move pursuant to CPLR §§ 510 (1) and 511 (a) and (b), for an Order changing the venue in this matter from New York County, where venue is improper pursuant to CPLR § 503 (a), to Onondaga County) where venue would be proper. Plaintiffs do not oppose the defendants' motion pursuant to CPLR § 510
(1), but instead bring a cross-motion pursuant to CPLR § 510 (2) seekingto retain
venuein New York County "as there is reason to believe that an impartial trial
cannot be had in the proper county (Onondaga County)."
. On December 13~2011~ plaintiffs commenced this defamation action against
defendants by filing a summons and verified complaint inthe Supreme Court of the , State of New York, New York County, On December 23,2011, the parties executed a stipulation extending their time to appear, answer, move, and/or respond to plaintiffs' complaint until
January 20,2012. On December 30,2011, defendants served plaintiffs with a
demand for change of venue pursuant to CPLR §§ 511 (a) and (b). alleging that venue was not proper in New York County as no party to the action resides there.
On January 4,2012, plaintiffs served defendants with an affirmation in response to defendants' demand. In this response, plaintiffs did not address the residency of the . parties, but instead alleged that Onondaga County was not proper because of the defendants' prominence in Syracuse, New York.
On or about January, 17,2012, defendants brought the instant motion here,
in Onondaga County within the time limits set forth in CPLR § 511 (b).
MOTION TO DISMISS
. This action is currently pending in New York County. On or about January 20,2012 defendants filed a pre-answer motion to dismiss pursuant to CPLR § 3211 (a) (7)~which is presently returnable in said Court on March 14,
2012. In light of this, plaintiffs contend that the subject motion and cross-motion
regarding venue should be held in abeyance until the New York County Supreme Court hears and decides the pending motion to dismiss. Plaintiffs do not cite any New York case law in support of this request, hut instead argue that this Court should not expend judicial resources deciding the
venue question when the motion to dismiss may end this lawsuit, which would, of course, render the question of proper venue moot. The Court disagrees. It is the practice of this Court to determine
question first before moving on to any dispositive issues. Thus, plaintiffs' request to hold the venue motions in abeyance is denied.
At the outset, the Court must address the issue of how this venue motion was brought in Onondaga County as opposed to New York County, where the action is currently pending.
As noted above, after plaintiffs' action was commenced and the defendants' time to answer was extended, the defendants served a demand for change of venue pursuant to CPLR §§ 511 (a) and (b) alleging that venue was not proper in New York County because of the "residency of the named parties. In plaintiffs' responding affirmation the issue of residency of the parties was not addressed. Consequently, the defendants were then able to file their motion in the transferee county - Onondaga County. CPLR § 511 (b); HVT, Inc. v. Safeco Ins. Co. of Am., 77 A.D.3d 255 (2d Dep't 2010).
Venue - As of Ri2ht
CPLR § 503 (a) provides the following:
(a) Generally. Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county.
Similarly, CPLR § 510 (1) provides that: The court, upon motion, may change the place of trial of'an action where: (1) the county designated for that purpose is not a proper county.
Where a plaintiff has failed to demonstrate that its designated venue was proper or that defendant's choice is improper, the defendant is entitled to a transfer
of the action as of right. CPLR §§ 510 (1) and 511; Lopez v. K Angle K, Inc., 24 A.D.3d 422 (2d Dep't 2005):
It is' undisputed that no parties to this action reside in New York County and
plaintiff, Michael Davis and both defendants reside in Onondaga County. Moreover, plaintiffs concede that the designated venue ~New York County - is not proper. To that end, defendants are entitled to a change of venue as a matter of right from New York County to Onondaga County. Franklin Traffic Serv., Inc. v. Helmer's Fuel & Trucking, Inc., 142 A.D.2d 936 (4th Dep't 1988).
Venue - Discretionary The fact that a plaintiff filed his complaint initially in a venue that was revealed to be improper does not in any way hamper the plaintiff s ability to bring a CPLR § 510 (2) motion or diminish the Court's discretion in granting same. See
e.g., Goerckev. Kim Yong Kyun, 273 A.D.2d 110 (lS! Dep't 2000).
CPLR § 510 (2) provides the following: The court, upon motion, may change the place of trial of an action where: (2) there is reason to believe that an impartial trial cannot be had in the proper county.
A change of venue under CPLR § 510 (2) requires a showing of facts which demonstrate a "strong possibility" that an impartial trial cannot be obtained in the proper county. Blaine v. International Business Machines Corp., 91 A.D.3d 1175 (3d Dep't 2012); County a/Onondaga v. Home Ins. Co., 265 A.D.2d 896 (4th Dep't
1999); The Trust v. Russo, 21 Misc. 3d 1120(A) (2008) (A party seeking to have
venue changed because an impartial trial cannot be had bears a heavy burden.). A
"mere belief, suspicion, or feeling" is insufficient to demonstrate the requisite "strong possibility." DeBolt v. Barbosa, 280A.D.2d v. County a/Westchester, 821 (3d Dep't 2001); Krupka
160 A.D.2d 681 (2d Dep't 1990). Moreover, an action
will not be transferred simply because a party is prominent in the community or
because the action is subject to extensive media coverage. Thorne v. Grubman, 21 A.D.3d 254 (1$1 Dep't 2005); Jablonski v. Trost, 245 A.D.2d 338 (2d Dep't 1997); Babylon Associates v. Suffolk County, 89 A.D.2d 5'7 (lst Dep't 1982).
A significant economic interest by the local citizenry in the outcome of the case may, however, provide grounds for a transfer. See e.g.. Long Is. Light Co. v. New England Petroleum Corp., 80 Misc. 2d 183 (1974) ("LILeQ"); Althiser v. Richmondville Creamery Co., 13 A.D.2d 162 (3d Dep't 1961). Nevertheless, when a Court considers a discretionary change of venue, the review is limited by the "express legislative preference" for actions to be tried in proper counties. Saxe v.
OB/GYN Assocs., P.C., 86 N.Y.2d 820,822 (1995). In support of their CPLR § 510 (2) motion, plaintiffs contend that the defendants' standing in the Central New York community and the importance of the success of the Syracuse basketball team to the area economy, prevents an impartial trial from taking place in Onondaga County. Similarly, plaintiffs contend that the potential jury pool in Onondaga County is "deeply economically invested" in Syracuse University and the success of the basketball team. To support this theory, plaintiffs cite to the profits created by the Syracuse basketball program along with the income generated by local businesses. It is true that CPLR § 510 (2) motions may be granted where the pool of potential jurors has a tangible economic interest or other related stake in the subject of the litigation. For example, a motion pursuant to CPLR § 510 (2) was granted in Long Is. Light Co. v. New England Petroleum Corp., 80 Misc.2d 183 (1974)
because a contract dispute between the parties resulted in an increase in utility costs for the population of individuals that constituted the potential jury pool. The Third Department case of .Althiser v. Richmondville Creamery Co., supra, involved a
dispute over milk prices between dairy farmers and foreign corporations, In , Althiser, a change of venue was granted because "in a dairying community the milk price is an economic factor of some interest and concern to various persons other than producers and sometimes engenders problems to which jurors generally are sympathetic." Id. at 163 . . In both of the above-referenced cases, an impartial trialwas simply
impossible due to the direct economic interest of the overwhelming majority of
potential jurors. The case at bar is highly distinguishable.
As argued by the defendants, this action does not present the same factual circumstances involved in Althiser or LILCa This action does not attempt to dismantle Syracuse University or its basketball program, but rather seeks damages for the alleged defamatory statements of defendant James Boeheim, The plaintiffs here have failed to demonstrate that any potential juror has a legitimate direct economic or pecuniary stake in the outcome of this litigation. Debolt v. Barbosa. 280·A.D.2d 821 (3d Dep't 2001).
Moreover, the record before the Court establishes that Onondaga County has a population of nearly half a-million residents. Approximately 350,000· of those residents are of legal jury service' age. Syracuse University employs approximately 6,500 individuals. T~s is a far cry from Althiser, which involved a jury pool of
1,500 individuals, of which there were 126 plaintiffs.
There is no dispute that defendant James Boeheim is a prominent figure in Central New York. He has been the head coach of the Syracuse basketball team for the past 30 + years and often times appears in local commercials for a variety of local Syracuse businesses. There is also no dispute that the Syracuse basketball
program has enjoyed great success under defendant Boeheim, including this season
in which Syracuse is currently ranked # 2 in all national polls. Regardless, just
because a party to an action is of some prominence or holds an official position in the county does not justify aninference that an impartial trial cannot be held in that county. Cohen v. Bernstein, 9 A.D.3d 573 (3d Dep't 2004). The Court has reviewed the cases cited by plaintiffs and has found them all to be inapposite. While many of the cases cited by plaintiffs deal with venue, they serve as better examples of judicial recusal than change of venue. This Court does not take issue with the principle that a party's lawsuit should not be heard before a Judge in which they share a personal relationship. This case does not involve such
issues. The Court recognizes there may be individuals who reside in Onondaga County that may, potentially, be disqualified from serving as a juror in this matter. To conduct that exercise now, however, would circumvent the jury selection process. The Court expects certain members of the potential jury pool to possess implicit and explicit biases. The parties here will have an equal opportunity to confront those potential biases during voir dire and the Court, at that time, will exercise its due diligence in ensuring impartiality of the jurors. Blaine v, International Business Machines Corp., 91 A.D.3d 1175 (3d Dep't 2012); Krupka v. County o/Westchester, 160 A.D.2d 681 (2d Dep't 1990).
The plaintiffs' arguments are well-crafted and are certainly worthy of review from this Court, but they still equate to nothing more than mere beliefs, suspicions, and a feeling of possible bias. This is insufficient to retain venue in New .York County. As a final argument. plaintiffs contend that local media coverage has tainted
the potential jury pool and therefore New York County should retainvenue over
this matter. It is well settled that the existence of extensive media coverage rarely provides a basis for change of venue pursuant to CPLR § .510 (2). In Babylon Associates v, County of Suffolk, 89 A.D.2d 57 (1 st Dep't 1982). the First Department
reversed the Trial Court's grant of such a motion despite "thousands of articles" written about a scandal involving the defendant, a private contracting firmwhose sub-contractor had already been convicted in conspiracy to defraud in Federal District Court. The Court concluded that "[wjhile some of the prospective jurors may be biased against private contracting firms, the jury pool still contains a considerable number of impartial individuals."Id. at 59.
Plaintiffs have submitted several articles from national and local (Syracuse) media outlets commenting on defendant James Boeheim and certain comments he made before and after Bernie Fine's dismissal froni Syracuse University. The Court is familiar with these articles and does not view them in the same way as
plaintiffs. The articles and related literature are not wholly one-sided; nor can all of
the articles be considered unduly unfair. Some of the articles support defendants, while others support the plaintiffs. The Court has not been ca11edupon to review whether the media coverage has been fair and accurate, but in the context of plaintiffs' argument, the Court does not view the media coverage in Cental New York as completely "negative" so as to preclude a fair and impartial trial. Thorne v.
Grohman, 21 A.D.3d 254 (1 st Dep't 2005); DeBolt v. Barbosa, 280 A.D.2d 821 (3d·
Plaintiffs have failed to satisfy their burden showing a "strong possibility" that an impartial trial cannotbe obtained in Onondaga County. CONCLUSION In view of the foregoing, and after . due deliberation, it is hereby ORDERED thatdefendants' motion to transfer and change venue from New
York County to Onondaga County pursuant to CPLR §§ 510 (1) and 511 (a) and
(b) is GRANTED; and it is further
ORDERED that plaintiffs' cross-motion to retain venue in New York County pursuant to CPLR § 510 (2) is DENIED; and it is further ORDERED that-upon receipt of this Decision and Order, with Notice of
Entry thereon, the Clerk of New York County shall forthwith transfer to the Clerk of Onondaga County all documents described in CPLR.§ 5 i1 (d). . The foregoing' shall constitute the Decision and Order of this Court. The papers upon which this Order is based are listed in ExhibitA attached hereto.
Dated: Syracuse, New York
February .22, .2012
. -E' N
Notice of Motion dated January 17, 2012~ Affirmation of Andrew M. Levine, Esq. dated January 17, 2012 with attached exhibits, and Memorandum of Law. Notice of Cross-Motion dated February 13, 2012, Affirmation of Mariann Meier Wang, Esq.dated February 13,2012 with attached exhibits, Affidavit of Robert Davis dated February 13, 2012, and Memorandum of Law.
Reply Affirmation of Andrew M. Levine, Esq. dated February 17, 2012 with attached exhibits, and Reply Memorandum of Law.
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