Opinion
March 20, 1951.
S. J. Shapiro, New York City, for Safran.
L. Jones, for Elias.
Cross-motions for change of venue are made in this negligence action. Defendant seeks to remove the action from Kings County to Herkimer County on the ground that defendant resides in the latter county while the plaintiff, an infant, resides in Bristol, Connecticut. The application is opposed on the ground that the guardian ad litem appointed for the infant in this court resides in Kings County. The residence of defendant must control, under the facts shown, it having been held by the Appellate Division of this Department that "For the purposes of section 182, Civil Practice Act, the residence of the guardian ad litem herein does not control" Levey v. U.S. Life Insurance Co., 259 A.D. 909, 20 N.Y.S.2d 157. Plaintiff's motion to retain the action here on the ground of convenience of witnesses specifies two witnesses who will be called to testify, whose convenience will be so served, Hazel Levinsky and Barbara Levinsky, the former being the guardian ad litem. They are described as having been eye-witnesses to the accident (fall on an allegedly defective landing of a summer-resort casino run by defendants at Old Forge, New York) in which the infant sustained the injuries for which he sues. In opposition, defendant lists as witnesses two nephews of defendant, residing in Utica, N. Y., who, he says, were also eye-witnesses and will testify that plaintiff's fall was caused by her running after a ping-pong ball; also the physician who attended plaintiff, who resides in Old Forge, N.Y. The situation appears to be balanced in this respect. The infant plaintiff will have to travel from Connecticut, in any event. Plaintiff's motion is denied. Defendant's motion for change of venue granted. A third motion is made by defendant to compel plaintiff, as a non-resident of the state, to post security for costs. The application is opposed on the ground that there is a guardian ad litem suing in behalf of the infant and that such guardian ad litem, as was pointed out in Backerman v. Coccola, 189 A.D. 235, 178 N.Y.S. 423, 424 where the court says "Since 1904 there has been no statutory authority to require security for costs to be given by a guardian ad litem." It is within the power of a party to protect himself by requiring the appointment of a responsible person as such guardian.
Motion denied. Settle order in accordance with above.