           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

189
CA 12-01652
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF MICHAEL J. MIMASSI,
PETITIONER-APPELLANT,

                     V                            MEMORANDUM AND ORDER

TOWN OF WHITESTOWN ZONING BOARD OF APPEALS,
RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


DOUGLAS H. ZAMELIS, MANLIUS, FOR PETITIONER-APPELLANT.

WILLIAM P. SCHMITT, TOWN ATTORNEY, UTICA, FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered May 7, 2012 in a proceeding pursuant
to CPLR article 78. The order, sua sponte, transferred venue of the
proceeding from Onondaga County to Oneida County.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Supreme Court, Onondaga County, for further proceedings in
accordance with the following Memorandum: Petitioner commenced this
CPLR article 78 proceeding seeking to annul two determinations of
respondent made in connection with petitioner’s application for an
area variance from a provision of the Town of Whitestown’s Zoning
Ordinance. The proceeding was commenced in Supreme Court, Onondaga
County, and by the order in appeal No. 1 that court, sua sponte,
transferred the proceeding to Supreme Court, Oneida County, pursuant
to CPLR 507. We agree with petitioner that the court erred in
transferring the proceeding sua sponte. CPLR 509 provides that the
place of trial may be changed to another county “by order upon motion,
or by consent.” CPLR 510 provides the grounds for the change of the
place of trial, upon a motion. A court “is authorized to change venue
only upon motion and may not do so upon its own initiative” (Kelson v
Nedicks Stores, 104 AD2d 315, 316). Additionally, a CPLR article 78
proceeding seeking to annul a determination denying a request for an
area variance does not affect the title to, or the possession, use or
enjoyment of, real property, and thus the court erred in relying on
CPLR 507 in transferring the proceeding. In view of our
determination, we vacate the judgment in appeal No. 2 dismissing the
petition, and we do not address the issues raised in appeal No. 2.

Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
