Opinion
2011-12-27
Daphne KALLAS, appellant, v. David COSTELLO, respondent.
Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne of counsel), for appellant. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), for respondent.
Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne of counsel), for appellant. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated July 13, 2011, which granted the defendant's motion for a change of venue from Kings County to Orange County.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the defendant's motion for a change of venue from Kings 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, Kings County, all papers filed in this action and certified copies of all minutes and entries ( see CPLR 511[d] ).
The Supreme Court improvidently exercised its discretion in granting the defendant's motion for a change of venue from Kings County to Orange County, since the defendant's motion to change venue, based upon an allegedly improper county, was not served within 15 days after service of his demand for a change of venue ( see CPLR 511[b]; Wilkerson v. 134 Kitty's Corp., 49 A.D.3d 718, 854 N.Y.S.2d 169; Parks v. Costco Wholesale Membership, Inc., 19 A.D.3d 570, 796 N.Y.S.2d 539), and there is nothing in the record which suggests that this case falls within the narrow exception to the rule ( compare Brash v. Richards, 87 A.D.3d 556, 929 N.Y.S.2d 745; Accardi v. Kaufmann, 82 A.D.3d 803, 918 N.Y.S.2d 371).