Summary
finding that "[w]ithout this showing of inconvenience, the IAS court improvidently exercised its discretion in granting a change of venue that had been properly laid by statute"
Summary of this case from DLUGASKI v. PORT AUTH. OF NY N.J.Opinion
466N
April 11, 2002.
Order, Supreme Court, Bronx County (Anne Targum, J.), entered October 3, 2001, which granted motions by defendant/ third-party plaintiff Gomaco Corporation and defendant Mill Rental Corp. for a change of venue from Bronx County to Queens County, and denied plaintiff's cross motion for retention of venue in Bronx County, unanimously reversed, on the law, without costs, the motions for change of venue denied and the cross motion granted.
Brian J. Isaac for plaintiffs-appellants.
Meredith Drucker Frederick B. Simpson for defendants-respondents.
Vincent P. Pozzuto for third-party defendant-respondent.
Before: Saxe, J.P., Rosenberger, Ellerin, Wallach, Marlow, JJ.
Even though the allegedly wrongful death took place at JFK International Airport, in Queens County, venue is properly lodged, in an action against the Port Authority, in the Bronx or any other county that lies wholly or partially within the Port of New York district (McKinney's Uncons Laws of N.Y. § 7106). An untimely demand or motion for change of venue (see CPLR 511) may be granted where it is demonstrated that the plaintiff has made misleading statements as to his or her actual place of residence (Philogene v. Fuller Auto Leasing, 167 A.D.2d 178), which was not the case here (see, Berberich v. York Scaffold Equip. Corp., 177 A.D.2d 451).
Defendants point to the court's discretionary authority to change the place of trial where "the convenience of material witnesses and the ends of justice" will thereby be promoted (CPLR 510). However, in order for the court to exercise its discretion, the moving party must provide detailed justification for such relief in the form of the identity and availability of proposed witnesses, the nature and materiality of their anticipated testimony, and the manner in which they would be inconvenienced by the initial venue (Cardona v. Aggressive Heating, 180 A.D.2d 572). Without this showing of inconvenience, the IAS court improvidently exercised its discretion in granting a change of venue that had been properly laid by statute. (See, Iassinski v. Vassiliev, 220 A.D.2d 372.)
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.