Tilo Co. v. Pantis 46 A.D.2d 685

Appeal by defendants from an order of the Supreme Court, Queens County, dated May 20, 1974, which denied their motion for a change of venue to Orange County. Order reversed, with $20 costs and disbursements, and motion granted. The instant action, upon a promissory note given pursuant to an agreement whereby plaintiff foreign corporation, licensed to do business in New York, was to reroof defendants’ residence, is governed by 1973 amendments to the CPLR (L. 1973, eh. 238, eff. Sept. 1, 1973) covering consumer credit transactions. For the procedural purposes of issuing a summons and laying venue, a consumer credit transaction is not defined by the words “instalment sale” or “interest” (CPLR 105, subd. [f]). Recourse to other consumer credit statutes, such as the Truth in Lending Law (TJ. S. Code, tit. 15, §§ 1601 et seq.) or the New York Personal Property Law (arts. 10 and 10-A), is neither necessary nor appropriate where the avowed purpose of the procedural amendments is “ to protect consumers by limiting the places where a creditor can bring suit arising out of a consumer credit transaction and to provide that clerks may not accept a summons misstating venue, in such transactions”. (N. Y. Legis. Ann., 1973, p. 18.) Appellants’ appearance in the action moots, their argument of lack of jurisdiction. Martuscello, Acting P. J., Latham, Christ and Brennan, JJ., concur; Benjamin, J., concurs in the result, with the following memorandum: I agree with the court at Special Term that this action did not arise out of a consumer credit transaction, within the meaning of CPLR 503 (subd. [f]). However, under the facts and circumstances of this case (i.e., defendants reside in Orange County, the transaction occurred in Orange County and plaintiff is a Delaware corporation whose main offices are at Stratford, Connecticut), Orange County is the proper forum for the trial (see CPLR 327).