Article 5

VENUE

§ 509. Venue in county designated.

Notwithstanding any provision of this article, the place of trial of an action shall be in the
county designated by the plaintiff, unless the place of trial is changed to another county by order upon
motion, or by consent as provided in subdivision (b) of rule 511.

§ 510. Grounds for change of place of trial.

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; or
2. there is reason to believe that an impartial trial cannot be had in the proper county; or
3. the convenience of material witnesses and the ends of justice will be promoted by the
change.

R 511. Change of place of trial.

(a) Time for motion or demand. A demand under supervision (b) for change of place of trial on
the ground that the county designated for that purpose is not a proper county shall be served with the
answer or before the answer is served. A motion for change of place of trial on any other ground shall
be made within a reasonable time after commencement of the action.
(b) Demand for change of place of trial upon ground of improper venue, where motion made.
The defendant shall serve a written demand that the action be tried in a county he specifies as proper.
Thereafter the defendant may move to change the place of trial within fifteen days after service of the
demand, unless within five days after such service plaintiff serves a written consent to change the place
of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action
were pending in the county he specified, unless plaintiff within five days after service of the demand
serves an affidavit showing either that the county specified by the defendant is not proper or t hat the
county designated by him is proper.
(d) Order, subsequent proceedings and appeal. Upon filing of consent by the plaintiff or entry of
an order changing the place of trial by the clerk of the county from which it is changed, the clerk shall
forthwith deliver to the clerk of the county to which it is changed all papers filed in the action and
certified copies of all minutes and entries, which shall be filed, entered or recorded, as the case
requires, in the office of the latter clerk. Subsequent proceedings shall be had in the county to which the
change is made as if it had been designated originally as the place of trial, except as otherwise directed
by the court. An appeal from an order changing the place of trial shall be taken in the department in
which the motion for the order was heard and determined.

R 512. Change of place of trial of action or issue triable without a jury.

The place of trial of an action or any issue triable without a jury may be, in the direction of the
court, in any county within the judicial district in which the action is triable. After the trial, the decision
and all other papers relating to the trial shall be filed and the judgement entered in the county where the
action is pending.
§ 513. Misplacement of venue in consumer credit transactions.

(a) the clerk shall not accept a summons for filing when it appears upon its face that the proper
venue is a county other than the county where such summons is offered for filing.
(b) The clerk shall indicate upon the summons the date of the rejection and shall enter such date
in a register maintained by him together with the name of the counties in which the summons may
properly be filed.
(c) Notwithstanding subdivisions one and three of section three hundred eight, where a
summons has been rejected for filing by virtue of this section, service is complete ten days after such
summons is filed in the proper county with proof of service upon the defendant of the summons,
together with proof of service upon the defendant by registered or certified mail of a notice setting forth
the following:
1. the proper county,
2. the date of filing of the summons,
3. the date within which the answer or notice of appearance is to be filed, and
4. the address at which it is to be filed.

Article 32
ACCELERATED JUDGEMENT

R 3211. Motion to dismiss.

(a) Motion to dismiss cause of action. A party may move for judgement dismissing one or more
causes of action asserted against him on the ground that:
1. a defense is founded upon documentary evidence; or
2. the court has not jurisdiction of the subject matter of the cause of action; or
3. the party asserting the cause of action has not legal capacity to sure; or
4. there is another action pending between the same parties for the same cause of action in
a court of any state or the United States; the court need not dismiss upon this ground but
may make such order as justice requires; or
5. the cause of action may not be maintained because of arbitration and award, collateral
estoppel, discharge in bankruptcy, infancy or disability of the moving party, payment,
release, res judicata, statute of limitations, or statute of frauds; or
6. with respect to a counterclaim, it may not properly be interposed in the action; or
7. the pleading fails to state a cause of action; or
8. the court has not jurisdiction of the person of the defendant; or
9. the court has not jurisdiction in an action where service was made under section 314 or
315; or
10. the court should not proceed in the absence of a person who should be a party.
11. the party is immune from liability pursuant to section seven hundred twenty-a of the not-
for-profit corporation law.

(d) Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition
to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but
cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection
in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained
or disclosure to be had and may make such other order as may be just.
R 3219. Tender.

At any time not later than ten days before trial, any party against whom a cause of action based
upon contract, express or implied, is asserted, and against whom a separate judgement may be taken,
may, without court order, deposit with the clerk of the court for safekeeping, an amount deemed by him
to be sufficient to satisfy the claim asserted against him, and serve upon the claimant a written tender of
payment to satisfy such claim. A copy of the written tender shall be filed with the clerk when the
money is so deposited. The clerk shall place money so received in the safe or vault of the court to be
provided for the safekeeping thereof, there to be kept by him until withdrawal by claimant or return to
the depositor or payment thereof to the county treasurer or commissioner of finance of the city of New
York, as hereinafter provided. Within ten days after such deposit the claimant may withdraw the
amount deposited upon filing a duly acknowledged statement that the withdrawal is in satisfaction of
the claim. The clerk shall thereupon enter judgement dismissing the pleading setting forth the claim,
without costs.
When there is no withdrawal within such ten-day period, the amount deposited shall, upon
request, be repaid to the party who deposited it. If the tender is not accepted and the claimant fails to
obtain a more favorable judgement, he shall not recover interest or costs from the time of the offer, but
shall pay costs for defending against the claim from that time. A tender shall not be made known to the
jury.
Money received by the clerk of the court for safekeeping as hereinabove provided and later
withdrawn by claimant or repaid to the depositor pursuant to the provisions hereof shall not be deemed
paid into court. If the deposit is neither withdrawn by claimant nor returned to the depositor upon his
request at the expiration of the ten-day period, the amount of such deposit shall be deemed paid into
court as of the day following the expiration of the ten-day period and the clerk shall pay the amount of
the deposit to the county treasurer or commissioner of finance of the city of New York, in accordance
with section twenty-six hundred one of the civil practice laws and rules. Withdrawal of such amount
thereafter shall be in accordance with the provisions of rule twenty-six hundred seven. Fees for services
rendered therein by a county treasurer or the commissioner of finance of the city of New York are set
forth in section eight thousand ten.

R 3220. Offer to liquidate damages conditionally.

At any time not later than ten days before trial, any party against whom a cause of action based
upon contract, express or implied, is asserted may serve upon the claimant a written offer to allow
judgement to be taken against him for a sum therein specified, with costs then accrued, if the party
against whom the claim is asserted fails in his defense. If within ten days thereafter the claimant serves
a written notice that he accepts the offer, and damages are awarded to him on the trial, they shall be
assessed in the sum specified in the offer. If the offer is not so accepted and the claimant fails to obtain
a more favorable judgement he shall pay the expenses necessarily incurred by the party against whom
the claim is asserted, for trying the issue of damages from the time of the offer. The expenses shall be
ascertained by the judge or referee before whom the case is tried. An offer under this rule shall not be
made known to the jury.

R 3221. Offer to compromise.

Except in a matrimonial action, at any time not later than ten days before trial, any party against
whom a claim is asserted, and against whom a separate judgement may be taken, may serve upon the
claimant a written offer to allow judgement to be taken against him for a sum or property or to the
effect therein specified, with costs then accrued. If within ten days thereafter the claimant serves a
written notice that he accepts the offer, wither party may file the summons, complaint and offer, with
proof of acceptance, and thereupon the clerk shall enter judgement accordingly. If the offer is not
accepted and the claimant fails to obtain a more favorable judgement, he shall not recover costs from
the time of the offer, but shall pay costs from that time. An offer of judgement shall not be made known
to the jury.

Article 41
TRIAL BY A JURY

§ 4102. Demand and waiver of trial by jury; specification of issues.

(a) Demand. Any party may demand a trial by jury of any issue of fact triable of right by a jury,
by serving upon all other parties and filing a note of issue containing a demand for trial by jury. Any
party served with a note of issue not containing such a demand may demand a trial by jury by serving
upon each party a demand for a trial by jury and filing such demand in the office where the note of
issue was filed within fifteen days after service of the note of issue. A demand shall not be accepted for
filing unless a note of issue is filed in the action. If no party shall demand a trial by jury as provided
herein, the right to trial by jury shall be waived by all parties. A party may not withdraw a demand for
trial by jury without the consent of the other parties, regardless of whether another party previously
filed a note of issue without a demand for trial by jury.