Opinion
100 CA 18–01377
02-08-2019
Jaymee Sue ROWLAND, Individually and as Administratrix of the Estate of Richard Rowland, Deceased, Plaintiff–Respondent, v. Timothy SLAYTON, Defendant–Appellant, et al., Defendants.
WOODS OVIATT GILMAN LLP, ROCHESTER (GREGORY G. BROIKOS OF COUNSEL), FOR DEFENDANT–APPELLANT. SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE (EDWARD J. SMITH, III, OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
WOODS OVIATT GILMAN LLP, ROCHESTER (GREGORY G. BROIKOS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE (EDWARD J. SMITH, III, OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking to recover damages for decedent's wrongful death and conscious pain and suffering resulting from an accident that occurred in Steuben County. We reject the contention of Timothy Slayton (defendant) that Supreme Court abused its discretion in denying his motion to change the venue of this action from Monroe County to Steuben County pursuant to CPLR 510(3). " ‘The party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses would be better served by the change’ " ( Rochester Drug Coop., Inc. v. Marcott Pharmacy N. Corp., 15 A.D.3d 899, 899, 789 N.Y.S.2d 779 [4th Dept. 2005] ). Here, although defendant provided the names, addresses, and occupations of the prospective witnesses; a statement of the witnesses' expected testimony that is sufficiently specific to allow the court to determine whether the witnesses are material; and a basis for concluding that the witnesses would be available and willing to testify (see id. ; Roth v. Meyer, 248 A.D.2d 1001, 1001, 670 N.Y.S.2d 149 [4th Dept. 1998] ; O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 172–173, 622 N.Y.S.2d 284 [2d Dept. 1995] ; Zinker v. Zinker, 185 A.D.2d 698, 698, 586 N.Y.S.2d 66 [4th Dept. 1992] ), defendant failed to establish that the prospective witnesses would be inconvenienced if the change of venue were not granted (cf. Seguin v. Landfried, 96 A.D.3d 1433, 1433, 945 N.Y.S.2d 902 [4th Dept. 2012] ). Furthermore, plaintiff offered to conduct all depositions of the witnesses in Steuben County and to limit the time of the depositions in an effort to minimize any hardship on the witnesses. We therefore conclude that "the court did not abuse its discretion in denying the motion inasmuch as defendant[ ] failed to meet [his] burden of proving that the convenience of material witnesses and the ends of justice would be promoted by the change" ( Cellino & Barnes, P.C. v. Law Off. of Christopher J. Cassar, P.C., 140 A.D.3d 1732, 1735, 35 N.Y.S.3d 606 [4th Dept. 2016] [internal quotation marks omitted] ).