Opinion
2012-11-27
ATLANTIC MUTUAL INSURANCE COMPANY, Plaintiff–Appellant, v. M.H. KANE CONSTRUCTION CORP., et al., Defendants–Respondents.
Gottesman, Wolgel, Malamy, Flynn & Weinberg, P.C., New York (Richard B. Demas of counsel), for appellant. Alexander J. Wulwick, New York, for respondents.
Gottesman, Wolgel, Malamy, Flynn & Weinberg, P.C., New York (Richard B. Demas of counsel), for appellant. Alexander J. Wulwick, New York, for respondents.
TOM, J.P., SAXE, RICHTER, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 24, 2011, which granted defendants' motion to change venue from New York County to Suffolk County pursuant to CPLR 510(3), unanimously reversed, on the law, without costs, and the motion denied.
Defendants' initial moving papers provided the names, addresses and occupations of four prospective nonparty witnesses in Suffolk County, but failed to make the requisite showing that those witnesses were actually contacted and were willing to testify, or to set forth the substance and materiality of their testimony ( see Berk v. Linnehan, 85 A.D.3d 475, 924 N.Y.S.2d 785 [1st Dept. 2011] ). Nor did defendants provide any reason why traveling to New York County would constitute a hardship for those witnesses ( see Hernandez v. Rodriguez, 5 A.D.3d 269, 270, 773 N.Y.S.2d 297 [1st Dept. 2004];Gluck v. Pond House Farm, 271 A.D.2d 334, 334–35, 706 N.Y.S.2d 874 [1st Dept. 2000] ).
Defendants' attempt to cure these deficiencies in their reply papers was improper ( see Root v. Brotmann, 41 A.D.3d 247, 836 N.Y.S.2d 874 [1st Dept. 2007] ). In any event, defendants failed to demonstrate that the proposed testimony of the nonparty witnesses, concerning defendants' claim that the County of Suffolk wrongfully declared defendant M.H. Kane Construction Corp. in default under a construction contract, would be material in the instant case in which plaintiff, a surety on performance bonds issued in connection with the construction project, seeks to recover pursuant to an indemnity agreement executed by defendants ( see BIB Constr. Co. v. Fireman's Ins. Co. of Newark, N.J., 214 A.D.2d 521, 625 N.Y.S.2d 550 [1st Dept. 1995] ).