Papp v. Moutsinas

—Appeal from an order of the Supreme Court (Cobb, J.), entered March 2, 1992 in Greene County, which denied defendant’s motion for a change of venue.

A pivotal issue in plaintiffs malicious prosecution action, originally venued in Schenectady County, is whether defendant had probable cause to file a complaint charging plaintiff with harassment and criminal mischief (see, Colon v City of New York, 60 NY2d 78, 82). This issue in turn, at least as to the criminal mischief charge, requires consideration of the property line between the property of defendant and that of plaintiff’s stepmother. The same consideration is central to a determination of defendant’s counterclaims based upon trespass and RPAPL 861. Accordingly, in our view, the action affects "title to, or the possession, use or enjoyment of, real property” within the meaning of CPLR 507 and thus must be venued in the county where the realty is located, here, Greene County (see, Sterling Commercial Corp. v Bradford, 32 AD2d 952; Zaczek v Zaczek, 27 Misc 2d 740, affd 14 AD2d 808; 2 Weinstein-Korn-Miller, NY Civ Prac ¶ 507.08).

Yesawich Jr., J. P., Levine, Mercure, Mahoney and Harvey, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion granted.