Opinion
13625 Index No. 22591/20E Case No. 2020-04172
04-20-2021
Joseph TAWIAH, Plaintiff–Appellant, v. Edwin J. MCNIFF, Jr., et al., Defendants–Respondents.
The Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for appellant. Robert A. Peirce & Associates, White Plains (Alessandra L. Cortina of counsel), for respondents.
The Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for appellant.
Robert A. Peirce & Associates, White Plains (Alessandra L. Cortina of counsel), for respondents.
Webber, J.P., Kern, Oing, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about September 16, 2020, which granted defendants’ motion to change the venue from Bronx County to Dutchess County, unanimously reversed, on the law, without costs, and the motion denied.
Supreme Court improvidently exercised its discretion in granting defendants’ motion to change venue. Defendants failed to show the existence of material witnesses who would be inconvenienced and the substance of their testimony (see CPLR 510[3] ; Argano v. Scuderi, 6 A.D.3d 211, 212, 774 N.Y.S.2d 323 [1st Dept. 2004] ). In fact, defendants did not identify any proposed nonparty witnesses and merely claimed, without any evidentiary support, that material witnesses would be inconvenienced by having to travel to Bronx County. The presumption that a witness will be inconvenienced merely because the courthouse is in a different county is unwarranted (see Pittman v. Maher, 202 A.D.2d 172, 177, 608 N.Y.S.2d 199 [1st Dept. 1994] ), and while the county of occurrence is a factor to be considered, defendants still had the burden of showing the inconvenience that would be sustained by the witnesses if required to testify in Bronx County (see Gissen v. Boy Scouts of Am., 26 A.D.3d 289, 291, 811 N.Y.S.2d 20 [1st Dept. 2006] ).
We have considered the remaining arguments and find them unavailing.