How to Effectuate a Change in Venue in an E-filed Case: lesson to the bar

March 15, 2019

Ever wondered how to effectuate a transfer of venue following your successful motion to change venue in an e-filed case?  Well wonder no more, as the Hon. Robert D. Kalish provides the bench and bar with a useful roadmap of what to do in American Transit A/S/O Sherman Ave. Eight Inc. v. Flour City Bagels, LLC.  Although not a Commercial Division case, a worthy read to all practicing in New York County.

The case is a simple subrogation action arising out of a motor vehicle accident that occurred in 2015.  Defendants moved, pursuant to CPLR 510(3), for a change of venue to Bronx County, which the Court granted.  The Order indicated that the case was “disposed”.  The directive in the Order was straightforward:

“the venue of this action is changed from this Court to Supreme Court, Bronx County, and upon service by movant of a copy of this order with notice of entry and payment of appropriate fees, if any, the Clerk of this Court is directed to transfer the papers on file in this action to the Clerk of the Supreme Court, Bronx County.”

Service of the Order with Notice of Entry was done through e-filing.  Seven months later, counsel for the defendants (movant) advised the Court (New York Supreme) that the case had never been transferred to Bronx County, but in the interim, the companion cases in the Bronx had settled.  Accordingly, defendants requested that the Court “recall” its prior transfer order or advise whether the parties should proceed to effectuate the transfer to the Bronx.  Justice Kalish used this “opportunity to clarify, for the New York County litigants and motion courts alike, the procedure to be followed by the movant whose motion to change venue from New York County to another county is granted.”

First and foremost, “merely e-fling a copy of the order with ‘Notice of Entry’ upon the parties . . . is insufficient to effectuate transfer.”  The movant must e-file form EF-22, Notice to County Clerk, along with the Court’s transfer order.  Next, the notice must be e-filed to the case docket under the category, “Non-Motion Documents>Documents not related to motion/petition/OSC” with a “Document Type” of “Notice to County Clerk CPLR 8019(c).”  According to the Court, “[t]hen, and only then, will the transfer order properly be filed to the New York County Clerk, who will then be properly on notice . . . and will take the appropriate next steps in effectuating the transfer.”