Opinion
November 8, 1973
Appeal by the defendants from an order of the Supreme Court at Special Term, entered January 22, 1973 in Broome County, which (1) granted plaintiff leave to renew, and on renewal, denied defendant's original motion to change venue and vacated an earlier order changing venue from Erie to Broome County and (2) denied defendant's cross motion for retention of venue in Broome County. As to the merits, from the record it appears that no preponderance of witnesses for either side was shown. Also, the speed with which the case would reach trial appears to be about the same in the two counties. Thus the controlling factor appears to be that the cause of action arose in Broome County. Other things being equal, this factor has been held to be controlling ( Kulock v. Kiamesha Concord, 28 A.D.2d 660; Strosberg v. Kiamesha Concord, 26 A.D.2d 723). Therefore, this court appears to have sufficient facts before it to make a decision on the merits of defendants' cross motion. Moreover, the facts clearly demonstrate that under CPLR 510 (subd. 3), the ends of justice will be promoted by retaining the venue in Broome County. Order reversed, on the law and the facts, without costs, and defendants' cross motion granted. Herlihy, P.J., Greenblott, Cooke, Main and Reynolds, JJ., concur.