Opinion
October 16, 1995
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the order is affirmed, with costs.
When, as here, venue is in an improper county, a party who wishes to change venue as of right must serve a demand to change the place of trial to the proper county before the service of a responsive pleading is due ( Matter of D.M.C. Constr. Corp. v Nash Steel Corp., 70 A.D.2d 635). Because the defendant in this case failed to serve such a demand, it is foreclosed from obtaining a change of venue as of right, and the issue is left to the court's discretion ( see, Losicco v. Gardner's Vil., 97 A.D.2d 535). Moreover, the affidavit submitted by the defendant in support of its motion to change venue was insufficient to establish entitlement to a change of venue based on the convenience of material witnesses ( see, CPLR 510; Matter of O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169). Thus, the court's denial of the defendant's motion was not an improvident exercise of discretion. Balletta, J.P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.