A.C.E. Elevator Co. v. V.J.B. Constr. Corp

In A.C.E. Elevator Co. v. V.J.B. Constr. Corp., 192 Misc2d 258 (S Ct Kings 2002) the Court examined the interrelationship between CPLR 501 and 507. In that case the Court opined that: Pursuant to CPLR 507, "The 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" .CPLR 501, in turn, provides that: "Subject to the provisions of subdivision two of section 510, written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial." Notwithstanding that CPLR 501 authorizes the enforcement of forum selection clauses generally, Ace initially argues that this statute is inoperative when the cause of action, such as here, is governed by CPLR 507. This, it is urged, flows from the mandatory language of CPLR 507, which allegedly creates an inviolable rule requiring an action affecting real property to be commenced only in the county where the property is situated. I disagree. First, pursuant to the express terms of CPLR 501, a contractual forum selection clause is enforceable except in a situation governed by CPLR 510 (2), which is not relevant here. Hence, applying the interpretive canon of inclusio unius est exclusio alterius, the Legislature's failure to exempt CPLR 507 from the grasp of CPLR 501 necessarily demonstrates that the statutory scheme does not preclude parties from contractually fixing venue in a foreclosure action. Stated otherwise, had the Legislature intended that a written agreement fixing venue could not be enforced in an action affecting real property, it would have necessarily included a reference to CPLR 507 within the body of CPLR 501 as it did with section 510 (2) (cf., Pajak v. Pajak, 56 NY2d 394, 397, 437 N.E.2d 1138, 452 N.Y.S.2d 381). Second, while CPLR 507 does speak in mandatory terms, i.e., it provides that an action affecting real property "shall" be commenced in the county where the property is situated, this is of little significance in determining the interrelationship between CPLR 507 and 501. In this vein, CPLR 503 (a), the statute governing transitory causes of action, similarly speaks in [261] mandatory language, providing that the trial of such an action "shall be in the county in which one of the parties resided when it was commenced." (Emphasis added.) It is settled law, however, that this mandatory language is trumped by a written agreement fixing venue as authorized by CPLR 501 (see, Callanan Indus. v. Sovereign Constr. Co., 44 AD2d 292, 354 N.Y.S.2d 486; see also, Brooke Group v. JCH Syndicate 488, 87 NY2d 530, 663 N.E.2d 635, 640 N.Y.S.2d 479; Premium Risk Group v. Legion Ins. Co., 294 AD2d 345, 741 N.Y.S.2d 563; Buhler v. French Woods Festival of Performing Arts, 154 AD2d 303, 546 N.Y.S.2d 591). By a parity of reasoning, therefore, it is apparent that CPLR 507 does not, because of its use of mandatory language, conflict with the provisions of CPLR 501. (A.C.E. Elevator Co. v. V.J.B. Constr. Corp., supra at 260-261).