Opinion
November 30, 1971
Order, Supreme Court, New York County, entered July 27, 1971, unanimously reversed, on the law and the facts, without costs and without disbursements; defendant's motion for change of venue to Westchester County granted, without costs; and plaintiff's motion for temporary alimony, counsel fees and custody of children denied, without prejudice to renewal in Westchester County. Since both parties resided in Westchester County at the time of the commencement of this action, it was improperly brought in New York County (CPLR 503, subd. [a]; 510, 511). Furthermore, plaintiff's affidavits fail to properly establish that the convenience of witnesses or the ends of justice require the retention of venue in New York County. (See 2 Weinstein-Korn-Miller, N.Y. Civ. Prac., pars. 510.12, 510.14.) It appears that the plaintiff is employed and has some personal assets, and that the defendant is adhering to an agreement incorporated in a Family Court order for weekly payments for support of his children. There being no emergency situation involved, we adhere to a policy which calls for a denial of a motion, notice of which was served with the summons and which was made returnable in a county in which the venue was improperly laid.
Concur — Capozzoli, J.P., McGivern, Markewich, Murphy and Eager, JJ.