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Carrozza v. Galleria Mall at White Plains

Appellate Division of the Supreme Court of New York, First Department
Mar 26, 2002
292 A.D.2d 279 (N.Y. App. Div. 2002)

Opinion

120N

March 26, 2002.

Order, Supreme Court, New York County (Walter Tolub, J.), entered January 5, 2001, which granted defendants' motion for a change of venue from New York County to Westchester County, unanimously reversed, on the law and the facts, with costs, and the motion denied.

JOHN J. BAILLY, for plaintiffs-appellants.

GREGORY S. PINTER, for defendants-respondents.

Before: Williams, P.J., Ellerin, Rubin, Marlow, JJ.


In support of their motion to change venue for the promotion of the convenience of material witnesses (CPLR 510), defendants duly provided their proposed witnesses' names and addresses (see, Leopold v. Goldstein, 283 A.D.2d 319, 320). However, "[t]o establish inconvenience of witnesses it is necessary at least to contact them" (MacRobbie v. Olivio, 200 A.D.2d 373, 374). Defendants failed to demonstrate that they contacted any of the witnesses they identified. Counsel asserted in an affirmation that the witnesses were willing to testify but did not say that counsel (or anyone on defendants' behalf) had contacted them to ascertain their willingness to testify or the materiality of their testimony (see, Leopold, supra). At the same time, counsel stated that, "[t]o the extent the witnesses are not willing to testify, subpoenas would be issued."

Plaintiffs' counsel attempted to contact the nine witnesses identified by defendants. Two of these witnesses told counsel's office they had not seen the accident and had not been contacted by anyone else regarding the case. Moreover, one of them said he would be willing to testify in New York County and swore an affidavit to that effect. The third witness died six months before defendants made their motion. The remaining witnesses could not be reached at the addresses provided by defendants.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Carrozza v. Galleria Mall at White Plains

Appellate Division of the Supreme Court of New York, First Department
Mar 26, 2002
292 A.D.2d 279 (N.Y. App. Div. 2002)
Case details for

Carrozza v. Galleria Mall at White Plains

Case Details

Full title:EDWARD CARROZZA, ET AL., PLAINTIFFS-APPELLANTS, v. GALLERIA MALL AT WHITE…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 26, 2002

Citations

292 A.D.2d 279 (N.Y. App. Div. 2002)
739 N.Y.S.2d 153

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