Preview
ARA NK AM INDEX NO. EF20231806
) 0 OUN
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/11/2024
SUPREME COURT
STATE OF NEW YORK COUNTY OF SARATOGA
ca eeene enna ce eeeen ene eneeeee enn e eee enn e nme nn neem eee n ene neeee nnn nn ann ee annem eamennnnememennewew een
GIANFAGNA FAMILY IRREVOCABLE TRUST,
And
ANNE EDWARDS, TRUSTEE OF THE GIANFAGNA
FAMILY IRREVOCABLE TRUST,
Plaintiffs, DECISION and ORDER
RJI # 45-1-2023-1055
-against- Index # EF20231806
HOMETOWN OIL, INC. and
ORA J, FITZGERALD,
Defendants.
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APPEARANCES
John T. Kolaga, Esq.
Rupp, Pfalzgraf, LLC
Attorneys for Plaintiffs
1600 Liberty Building
424 Main Street
Buffalo, New York 14202
Thomas Holmgren, Esq.
George H. Buermann, Esq.
Goldberg Segalla
Attorneys for Defendant Hometown Oil, Inc.
711 34 Avenue, Suite 1900
New York, New York 10017
Jeff Feigelson, Esq.
Attorneys for Defendant Ora J. Fitzgerald
24 Washington Avenue
Millbrook, New York 12545
WALSH, J
July 10, 2023, Plaintiffs filed a Summons and Complaint in
On or about
spill
Saratoga County Supreme Court seeking damages resulting from a heating oil
at property located at 21 Cole Road, in North Creek, Warren County, New York. On
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ARA NK AM INDEX NO. EF20231806
) 0 OUN
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/11/2024
August 10, 2023, Defendant Hometown Oil filed a demand to change venue from
Saratoga County to Warren County, pursuant to Civil Practice Law and Rules
(CPLR) §§507, 510 and 511, later followed by Notice of Motion. Plaintiffs oppose. Co-
Defendant Fitzgerald has taken no position.
The Summons and Complaint filed by Plaintiffs allege nine causes of action,
secking damages under the Navigation Law, negligence and negligence per se, public
and private nuisance, indemnification and contribution, as well as seeking a
declaratory judgment. Defendant Hometown Oil contends that as the real property
damaged lies in Warren County, as do many of the witnesses, that venue is properly
situated in Warren County. Additionally, Defendant Hometown Oil submits that any
action alleging trespass must be tried in the county where the trespass is committed.
In contrast, Plaintiffs submit that the trustee of the trust, as well as many of the
witnesses are located in Saratoga County. Further, since this is an action for the
recovery of damages and does not affect the title to real property, CPLR §507 is
inapplicable.
CPLR §507 provides that “[t]he place of trial of an action in which the judgment
demanded would affect the title to, or the possession, use or enjoyment of, real
property shall be in the county in which any part of the subject of the action is
situated.” As the Third Department directed in a similar action under the Navigation
Law for the recovery of money damages in State of New York v. Slezak Petroleum
Prods., Inc., 78 AD3d 1288 [3" Dept. 2010], simply because an action involves real
property, but does not implicate a change in title to the property, venue pursuant to
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INDEX NO. EF20231806
FILED: SARATOGA COUNTY CLERK 01/11/2024 10:38 AM
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/11/2024
CPLR §507 is not mandated. Further, Defendant Hometown Oil submits that since
allegations of trespass are made, such action must be tried in the county where the
trespass occurred. However, a review of the Complaint reveals that while Plaintiffs
allege Hometown entered into its property without any invitation and without
permission, no cause of action alleging trespass is lodged. Accordingly, Defendant
Hometown Oil’s motion to change venue pursuant to CPLR §507 is denied.
Turning to the application pursuant to CPLR §510, “[t]he 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.”
Here, the Court has discretion to change venue, depending on the needs of
justice in the specific action. From the Court's review of the facts set forth, venue in
either county is proper, as Plaintiffs have demonstrated sufficient nexus to Saratoga
County. Further, a plaintiffs choice of forum is also due strong deference. JTS
Trading Ltd. v. Asesores, 178 AD2d 507 [1st Dept. 2019]. In the Court’s discretion,
based on the residency of the Trustee and key witnesses identified by Plaintiffs, the
Court will not disturb the venue selected by Plaintiffs. See, State of New York v.
Slezak Petroleum Prods., Inc., 78 AD3d 1288 [34 Dept. 2010]. Defendant Hometown
Oil’s motion to change venue pursuant to CPLR §510 is denied.
This shall constitute the Decision and Order of the Court. No costs are awarded.
to any party. Any relief not specifically addressed has been considered and denied.
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INDEX NO. EF20231806
(FILED: SARATOGA COUNTY CLERK 0171172024 10:38 AM
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/11/2024
The Court is hereby uploading the original Decision and Order into the NYSCEF
system for filing and entry by the County Clerk. Plaintiffs’ counsel is still responsible
for serving notice of entry of this Decision and Order in accordance with the Local
Protocols for Electronic Filing for Saratoga County. The Court is scheduling a
conference for the purpose of establishing a scheduling order to conduct discovery.
Said conference shall be conducted virtually with counsel via Microsoft Teams on
February 7, 2024 at 10:30 a.m.
Dated: January 18Sr.
Ballston Spa, New York
'S E. WALSH, J.S.C.
Papers received and considered: 01/11/2024 yb.
Entered Saratoga County Clerk
Notice of Motion of Defendant Hometown Oil, Inc. to Change Venue, filed August 25,
2023
Attorney Affirmation in Support of Defendant Hometown Oil, Inc.’s Motion to Change
Venue of George H. Buermann, Esq. and Thomas Holmgren, Esq., dated August 25,
2023, with Exhibits A-D
Attorney Affirmation in Opposition to Defendant Hometown Oil, Inc.’s Motion to
Change Venue of John T. Kolaga, Esq., filed September 6, 2023, with Exhibit 1
Memorandum of Law Opposition to Defendant Hometown Oil, Inc.’s Motion to
Change Venue of John T. Kolaga, Esq., dated September 6, 2023, with Exhibit A
Reply Attorney Affirmation in Further Support of Defendant Hometown Oil, Inc.’s
Motion to Change Venue of George H. Buermann, Esq. and Thomas Holmgren, Esq.,
dated September 14, 2023, filed on September 15, 2023
Letter from John T. Kolaga, Esq., objecting to late filing of Reply Attorney
Affirmation
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Preview
ARA NK AM INDEX NO. EF20231806 ) 0 OUN NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/11/2024 SUPREME COURT STATE OF NEW YORK COUNTY OF SARATOGA ca eeene enna ce eeeen ene eneeeee enn e eee enn e nme nn neem eee n ene neeee nnn nn ann ee annem eamennnnememennewew een GIANFAGNA FAMILY IRREVOCABLE TRUST, And ANNE EDWARDS, TRUSTEE OF THE GIANFAGNA FAMILY IRREVOCABLE TRUST, Plaintiffs, DECISION and ORDER RJI # 45-1-2023-1055 -against- Index # EF20231806 HOMETOWN OIL, INC. and ORA J, FITZGERALD, Defendants. eee cee anen ee em ne nee e ence econ enn nen ne en ne ee ee nee n ene neem nn namennamanennnnamer nnn mene e eee ee APPEARANCES John T. Kolaga, Esq. Rupp, Pfalzgraf, LLC Attorneys for Plaintiffs 1600 Liberty Building 424 Main Street Buffalo, New York 14202 Thomas Holmgren, Esq. George H. Buermann, Esq. Goldberg Segalla Attorneys for Defendant Hometown Oil, Inc. 711 34 Avenue, Suite 1900 New York, New York 10017 Jeff Feigelson, Esq. Attorneys for Defendant Ora J. Fitzgerald 24 Washington Avenue Millbrook, New York 12545 WALSH, J July 10, 2023, Plaintiffs filed a Summons and Complaint in On or about spill Saratoga County Supreme Court seeking damages resulting from a heating oil at property located at 21 Cole Road, in North Creek, Warren County, New York. On Page 1 of 4 lof 4 ARA NK AM INDEX NO. EF20231806 ) 0 OUN NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/11/2024 August 10, 2023, Defendant Hometown Oil filed a demand to change venue from Saratoga County to Warren County, pursuant to Civil Practice Law and Rules (CPLR) §§507, 510 and 511, later followed by Notice of Motion. Plaintiffs oppose. Co- Defendant Fitzgerald has taken no position. The Summons and Complaint filed by Plaintiffs allege nine causes of action, secking damages under the Navigation Law, negligence and negligence per se, public and private nuisance, indemnification and contribution, as well as seeking a declaratory judgment. Defendant Hometown Oil contends that as the real property damaged lies in Warren County, as do many of the witnesses, that venue is properly situated in Warren County. Additionally, Defendant Hometown Oil submits that any action alleging trespass must be tried in the county where the trespass is committed. In contrast, Plaintiffs submit that the trustee of the trust, as well as many of the witnesses are located in Saratoga County. Further, since this is an action for the recovery of damages and does not affect the title to real property, CPLR §507 is inapplicable. CPLR §507 provides that “[t]he place of trial of an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated.” As the Third Department directed in a similar action under the Navigation Law for the recovery of money damages in State of New York v. Slezak Petroleum Prods., Inc., 78 AD3d 1288 [3" Dept. 2010], simply because an action involves real property, but does not implicate a change in title to the property, venue pursuant to Page 2 of 4 20f 4 INDEX NO. EF20231806 FILED: SARATOGA COUNTY CLERK 01/11/2024 10:38 AM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/11/2024 CPLR §507 is not mandated. Further, Defendant Hometown Oil submits that since allegations of trespass are made, such action must be tried in the county where the trespass occurred. However, a review of the Complaint reveals that while Plaintiffs allege Hometown entered into its property without any invitation and without permission, no cause of action alleging trespass is lodged. Accordingly, Defendant Hometown Oil’s motion to change venue pursuant to CPLR §507 is denied. Turning to the application pursuant to CPLR §510, “[t]he 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.” Here, the Court has discretion to change venue, depending on the needs of justice in the specific action. From the Court's review of the facts set forth, venue in either county is proper, as Plaintiffs have demonstrated sufficient nexus to Saratoga County. Further, a plaintiffs choice of forum is also due strong deference. JTS Trading Ltd. v. Asesores, 178 AD2d 507 [1st Dept. 2019]. In the Court’s discretion, based on the residency of the Trustee and key witnesses identified by Plaintiffs, the Court will not disturb the venue selected by Plaintiffs. See, State of New York v. Slezak Petroleum Prods., Inc., 78 AD3d 1288 [34 Dept. 2010]. Defendant Hometown Oil’s motion to change venue pursuant to CPLR §510 is denied. This shall constitute the Decision and Order of the Court. No costs are awarded. to any party. Any relief not specifically addressed has been considered and denied. Page 3 of 4 3 0f 4 INDEX NO. EF20231806 (FILED: SARATOGA COUNTY CLERK 0171172024 10:38 AM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/11/2024 The Court is hereby uploading the original Decision and Order into the NYSCEF system for filing and entry by the County Clerk. Plaintiffs’ counsel is still responsible for serving notice of entry of this Decision and Order in accordance with the Local Protocols for Electronic Filing for Saratoga County. The Court is scheduling a conference for the purpose of establishing a scheduling order to conduct discovery. Said conference shall be conducted virtually with counsel via Microsoft Teams on February 7, 2024 at 10:30 a.m. Dated: January 18Sr. Ballston Spa, New York 'S E. WALSH, J.S.C. Papers received and considered: 01/11/2024 yb. Entered Saratoga County Clerk Notice of Motion of Defendant Hometown Oil, Inc. to Change Venue, filed August 25, 2023 Attorney Affirmation in Support of Defendant Hometown Oil, Inc.’s Motion to Change Venue of George H. Buermann, Esq. and Thomas Holmgren, Esq., dated August 25, 2023, with Exhibits A-D Attorney Affirmation in Opposition to Defendant Hometown Oil, Inc.’s Motion to Change Venue of John T. Kolaga, Esq., filed September 6, 2023, with Exhibit 1 Memorandum of Law Opposition to Defendant Hometown Oil, Inc.’s Motion to Change Venue of John T. Kolaga, Esq., dated September 6, 2023, with Exhibit A Reply Attorney Affirmation in Further Support of Defendant Hometown Oil, Inc.’s Motion to Change Venue of George H. Buermann, Esq. and Thomas Holmgren, Esq., dated September 14, 2023, filed on September 15, 2023 Letter from John T. Kolaga, Esq., objecting to late filing of Reply Attorney Affirmation Page 4 of 4 40f 4