Opinion
6470N Index 153770/16
05-03-2018
Josh TAYLOR, Plaintiff–Respondent, v. MONTREIGN OPERATING COMPANY, LLC, et al., Defendants–Appellants.
Hodgson Russ LLP, Buffalo (Ryan J. Lucinski of counsel), for appellants. Sacks and Sacks, New York (Scott N. Singer of counsel), for respondent.
Hodgson Russ LLP, Buffalo (Ryan J. Lucinski of counsel), for appellants.
Sacks and Sacks, New York (Scott N. Singer of counsel), for respondent.
Acosta, P.J., Friedman, Manzanet–Daniels, Kapnick, Kern, JJ.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered July 21, 2017, which denied defendants' motion to change venue from New York County to Sullivan County, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted.
The motion court exercised its discretion in an improvident manner in light of defendants' demonstration that the convenience of material nonparty witnesses would be better served by the change (see Kennedy v. C.F. Galleria at White Plains , 2 A.D.3d 222, 223, 769 N.Y.S.2d 526 [1st Dept. 2003] ; cf. Cardona v. Aggressive Heating , 180 A.D.2d 572, 580 N.Y.S.2d 285 [1st Dept. 1992] ). Defendants submitted the affidavits of four first responders and plaintiff's coworker, all of whom averred that they would testify as witnesses but would be inconvenienced by traveling to New York County. The accident occurred in Sullivan County, and other than one defendant's registered principal place of business, and one of plaintiff's physicians maintaining an office in the county, this matter has no contact with New York County (see Lawrence v. Volvo Cars of N. Am. , 224 A.D.2d 329, 638 N.Y.S.2d 44 [1st Dept. 1996] ). Plaintiff's argument that the affidavits submitted by defendants were not sufficiently detailed is unpersuasive, and plaintiff offers nothing to rebut defendants' assertions that his coworker, the first responders, and the sheriff who investigated the accident were material witnesses, as they averred in their affidavits (see Kennedy at 223, 769 N.Y.S.2d 526 ; see also Austin v. DaimlerChrysler Corp. , 294 A.D.2d 182, 741 N.Y.S.2d 685 [1st Dept. 2002] ). Furthermore, plaintiff's assertion that he has alleged violations of the Labor Law, and thus liability may be resolved prior to trial, is not relevant (see Risoli v. Long Is. Light. Co. , 138 A.D.2d 316, 319, 526 N.Y.S.2d 449 [1st Dept. 1988] ).