Opinion
2019–00800 Index No. 611867/18
08-21-2019
COLUCK INCORPORATED, appellant, v. SEM SECURITY SYSTEMS, INC., respondent, et al., counterclaim defendants.
Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y. (Kenneth Kirschenbaum of counsel), for appellant. Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Michael Frascarelli and Richard M. Mahon II of counsel), for respondent.
Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y. (Kenneth Kirschenbaum of counsel), for appellant.
Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Michael Frascarelli and Richard M. Mahon II of counsel), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered January 8, 2019. The order granted the defendant's motion, in effect, pursuant to CPLR 510(1) and (3) to change venue of the action from Nassau County to Orange County.
ORDERED that the order is reversed, on the law, with costs, the defendant's motion, in effect, pursuant to CPLR 510(1) and (3) to change venue of the action from Nassau County to Orange County is denied, and the Clerk of the Supreme Court, Orange County, is directed to deliver to the Clerk of the Supreme Court, Nassau County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511[d] ).
By summons and complaint dated August 31, 2018, the plaintiff commenced this action in the Supreme Court, Nassau County, alleging that the defendant owed the plaintiff approximately $159,000 pursuant to the terms of a contract. The defendant interposed an answer with counterclaims dated October 1, 2018. The defendant later served a demand to change venue, dated October 15, 2018, and subsequently moved, in effect, pursuant to CPLR 510(1) and (3) to change venue of the action to Orange County. In the order appealed from, the court granted the defendant's motion and directed that the action be transferred to Orange County. The plaintiff appeals. We reverse.
That branch of the defendant's motion which was to change venue based on the contention that the county designated was improper (see CPLR 510[1] ) was untimely since no demand to change venue was served with the answer or before the answer had been served (see CPLR 511[a], [b] ; Byron v. Spektor, 266 A.D.2d 253, 253, 698 N.Y.S.2d 290 ; Montoya v. Brown, 233 A.D.2d 374, 374, 650 N.Y.S.2d 582 ; Newman v. Physicians' Reciprocal Insurers, 204 A.D.2d 210, 210, 612 N.Y.S.2d 863 ). While in certain limited circumstances a court confronted with an untimely motion for a change of venue may exercise its discretion to grant the motion (see Philogene v. Fuller Auto Leasing, 167 A.D.2d 178, 179, 561 N.Y.S.2d 250 ), the defendant in this case did not present an adequate basis to support such an exercise of discretion (see Herrera v. R. Conley Inc., 52 A.D.3d 218, 218, 860 N.Y.S.2d 21 ; Byron v. Spektor, 266 A.D.2d at 253, 698 N.Y.S.2d 290 ; Montoya v. Brown, 233 A.D.2d at 374, 650 N.Y.S.2d 582 ; Newman v. Physicians' Reciprocal Insurers, 204 A.D.2d at 210, 612 N.Y.S.2d 863 ). Accordingly, that branch of the defendant's motion which was, in effect, pursuant to CPLR 510(1) to change venue should have been denied.
Furthermore, the defendant failed to demonstrate that a change of venue was warranted pursuant to CPLR 510(3). "A party moving for a discretionary change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses and the ends of justice will be promoted by the change" ( Ambroise v. United Parcel Serv. of Am., Inc., 143 A.D.3d 927, 928, 39 N.Y.S.3d 255 ; see CPLR 510[3] ; McManmon v. York Hill Hous., Inc., 73 A.D.3d 1137, 1138, 903 N.Y.S.2d 72 ). "In so doing, the moving party must set forth (1) the names, addresses, and occupations of the prospective witnesses, (2) the facts to which the witnesses will testify at trial, so that the court may judge whether the proposed evidence is necessary and material, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed" ( Ambroise v. United Parcel Serv. of Am., Inc., 143 A.D.3d at 928, 39 N.Y.S.3d 255 ; see M.I. v. Trinity–Pawling Sch., 125 A.D.3d 615, 615–616, 999 N.Y.S.2d 747 ). Here, the defendant's submissions satisfied none of these criteria (see Bikel v. Bakertown Realty Group, Inc., 157 A.D.3d 924, 925, 69 N.Y.S.3d 876 ). Accordingly, that branch of the defendant's motion which was, in effect, pursuant to CPLR 510(3) to change venue should have been denied.
MASTRO, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.