Opinion
January 31, 1989
Appeal from the Supreme Court, New York County (Edward Greenfield, J.).
Respondent's motion for a change of venue from New York County, where appellant resides, to Ulster County, where this transitory action arose, on the ground that the convenience of material witnesses required it, should have been denied. Respondent offered no reason why this motion, made nearly 2 1/2 years after his answer had been served, was not made within a reasonable time after the action was commenced (CPLR 511 [a]). Moreover, the supporting affidavits of respondent's two proposed witnesses did not establish the materiality of their testimony. The conclusory assertion found in these identical affidavits that, if called, the witnesses "would testify concerning the facts of the incident, as well as the surrounding condition at the time of the incident" is inadequate. In view of the fact that appellant's treating physicians are located in New York County, the balance of factors favors retaining venue there. (Schneeweiss v Pelkey, 138 A.D.2d 271 [1st Dept 1988].) Given respondent's lack of diligence in seeking the change and the fact that the case had been set for trial before the motion was decided, Supreme Court abused its discretion in disturbing appellant's choice of venue. (Hillegass v Duffy, 104 A.D.2d 969 [2d Dept 1984]; Fickling v Carter, 91 A.D.2d 578 [1st Dept 1982].)
Concur — Sullivan, J.P., Carro, Milonas, Rosenberger and Smith, JJ.