The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 30, 34, 35, 39, 43, 47 were read on this motion to CHANGE VENUE.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31, 32, 40, 44, 45, 46, 48, 49, 50 were read on this motion for DISMISSAL.

Motion sequences 001 and 002 are consolidated herein for disposition.

This is an action between business associates regarding the dissolution of shares by the company board and managing members. By notice of motion, defendants moved, pursuant to CPLR sections 503, 510 and 511, to transfer this action from New York County to Westchester County on the ground that venue is improper in New York County (motion seq. no. 001). Defendants also moved to dismiss the 1st, 2nd, 4th, and 5th causes of action in the complaint pursuant to CPLR 3211(a)(1), CPLR 3211(a)(5) and CPLR 3211(a)(7) (motion seq. no. 002).

Upon the foregoing documents, and upon due consideration, defendants' motion to change venue from New York County to Westchester County is granted.

Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when the action was commenced, or in the county in which a substantial part of the events or omissions giving rise to the claim occurred (CPLR §503[a]). Venue may be changed by the court, upon motion, if the county designated for trial is not proper (CPLR §510[1]; CPLR 511[b]).

Here, the complaint does not set forth a basis for venue in New York County. Defendant Spot On Lighting, LLC is a domestic limited liability company with its principal place of business in Westchester County, New York (Aff. of Harold Lehr NYSECF doc. no. 10). Defendant Lehr was served with the summons and complaint on October 22, 2021 in Larchmont, New York (NYSCEF doc. no. 7). Both of those defendants are domiciled in Westchester County. [*2]With regard to plaintiff, the complaint states only that plaintiff is a resident of New York State (NYSCEF doc. no. 1).

Plaintiff has not rebutted the assertion by defendants that he is not, nor ever has been, a resident of New York County (see, Aff. of Harold Lehr NYSECF doc. no. 10, para 11). Rather, plaintiff argues that venue in New York County is proper because New York County is the principal place of business for defendant Nulux, Inc. (NYSCEF doc. no. 43, para. 4). Nulux, however, was not a party when this action was commenced. Venue cannot be based upon the domicile of an entity that was not a party to the action when the action was commenced (see Searle v Suburban Propane Div. of Quantum Chem. Corp., 229 AD2d 988, 989 [4th Dept 1996][the court rejected a designation of venue based upon an amended complaint filed subsequent to the commencement of the action that based venue on the residence of a newly added party]).

Moreover, there is no indication anywhere in the pleadings or motion papers that the convenience of witnesses or the ends of justice would be served by retaining venue in New York County (see id.). Transfer to Westchester County, under these circumstances, then, is entirely proper (Weiss v Wal-Mart Stores E., L.P., 83 AD3d 461, 461-62 [1st Dept 2011][plaintiff forfeited the right to select venue by choosing an improper venue in the first instance]).

Accordingly, it is hereby

ORDERED that defendant's motion for a change of venue (motion seq. no. 001) is granted and the venue of this action is changed from this Court to the Supreme Court, County of Westchester; and it is further

ORDERED that the Clerk of this Court shall transfer the file in this action to the Clerk of the Supreme Court, County of Westchester, and shall mark his/her records to reflect such transfer; and it is further

ORDERED that, within 30 days from entry of this order, defendants shall serve a copy of this order with notice of entry upon the Clerk of this Court, shall pay the appropriate transfer fee, if any, and shall contact the staff of the Clerk of this Court and cooperate in effectuating the transfer; and it is further

ORDERED that the Clerk of the Court shall coordinate the transfer of the file in this action with the Clerk of the Supreme Court, Westchester County, to ensure an efficient transfer and minimize insofar as practical the reproduction of documents, including any documents that may be in digital format; and it is further

ORDERED that such service upon the Clerk of this Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctma nh)]; and it is further

ORDERED that defendants' motion to dismiss the complaint (motion seq. no. 002) is denied, without prejudice, with leave to refile in the Supreme Court, County of Westchester.

This constitutes the decision and order of the Court.