Opinion
13589N Index No. 30450/19E Case No. 2020-04737
04-13-2021
Pitoh POYODI, Plaintiff–Respondent, v. GO NEW YORK TOURS, INC., et al, Defendants–Appellants.
Barton LLP, New York (Maurice N. Ross of counsel), for appellants. Law Offices of Brian J. Elbaum, New York (Brian Elbaum of counsel), for respondent.
Barton LLP, New York (Maurice N. Ross of counsel), for appellants.
Law Offices of Brian J. Elbaum, New York (Brian Elbaum of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Oing, Kennedy, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered May 19, 2020, which denied defendants' motion to change venue from Bronx County to New York County pursuant to CPLR 510(3), unanimously affirmed, with costs.
The motion court providently exercised its discretion in declining to change venue from Bronx County, where plaintiff resides (see CPLR 503[a] ; O'Connor v. Lawrence Hosp., 162 A.D.2d 288, 559 N.Y.S.2d 133 [1st Dept. 1990] ). In support of their motion based on witness convenience, defendants failed to establish "the identity and availability of proposed nonparty witnesses, the nature and materiality of their proposed testimony, [or] the manner in which they would be inconvenienced by the initial venue" (see Moumouni v. Tappen Park Assoc., Inc., 118 A.D.3d 427, 427, 987 N.Y.S.2d 64 [1st Dept. 2014] [internal quotation marks omitted]). Their attorney's affirmation does not suffice, since it contains only a hearsay statement about what the proposed witnesses told counsel (see Pittman v. Maher, 202 A.D.2d 172, 176, 608 N.Y.S.2d 199 [1st Dept. 1994] ).
Defendants' assertion that the medical staff that treated plaintiff after the altercation in which he was injured would find it more convenient to travel to lower Manhattan than to the Bronx does not suffice (see Guerrero v. New York City Health & Hosps. Corp., 269 A.D.2d 184, 703 N.Y.S.2d 93 [1st Dept. 2000] ).
The court properly declined to consider the proposed witnesses' affidavits submitted by defendants for the first time on reply (see Migdol v. City of New York, 291 A.D.2d 201, 737 N.Y.S.2d 78 [1st Dept. 2002] ).