Opinion
September 20, 1993
Appeal from the Supreme Court, Suffolk County (Copertino, J.).
Ordered that the order is affirmed, with costs.
We agree with the plaintiffs' contention that the papers submitted in support of the defendant's motion to change venue from Suffolk County to Otsego County on the ground that the convenience of material witnesses and the ends of justice would be promoted were insufficient (see, Ryan v Genovese Pharmacy, 184 A.D.2d 628; CPLR 510). The defendant also claimed that Suffolk County was not a proper place of trial, but did so for the first time in its reply to the plaintiffs' affirmation in opposition to the motion. However, the plaintiffs availed themselves of an opportunity to oppose this claim in their surreply. Thus, review of this claim on the merits is proper (see, Fiore v Oakwood Plaza Shopping Ctr., 164 A.D.2d 737, affd 78 N.Y.2d 572, cert denied ___ US ___, 113 S Ct 75). Under the facts of this case, we find that Suffolk County was not a proper venue (see, CPLR 503 [a]). Bracken, J.P., Balletta, Eiber, O'Brien and Pizzuto, JJ., concur.