Summary
In Buterbaugh, the court found that plaintiff's choice of venue based on the situs of the alleged accident was improper.
Summary of this case from LA CARA MIA BAR LOUNGE v. GREAT LOCATIONSOpinion
April 24, 1990
Appeal from the Supreme Court, Bronx County (Barry Salman, J.).
Plaintiff Velma Buterbaugh alleges that on December 28, 1987, she was driving her car in The Bronx when she was suddenly struck by a car which failed to stop at a stop sign at the intersection of 177th Street and the Cross Bronx Service Road. The offending vehicle was alleged to have been negligently driven by the individual defendant Richard Del Pesce, Jr. and leased by another nonappealing defendant to defendant The Portfolio Edge, Inc., Del Pesce's employer. Plaintiff alleges that as a consequence she sustained serious personal injuries.
Notwithstanding that plaintiff, because she did not reside in Bronx County, initially designated an improper venue, and defendants timely sought a change of venue pursuant to CPLR 510 (1), the court should have granted plaintiff's cross motion to retain venue in Bronx County for the convenience of material witnesses (Dickman v. Stummer, 20 A.D.2d 611, 612; cf., United Credit Corp. v. Le Roy Adventures, 61 A.D.2d 742). In failing to grant the cross motion to retain venue in Bronx County, the motion court erred, since plaintiff made the requisite showing for retaining venue in Bronx County by particularizing the testimony of six potential trial witnesses in sufficient detail (CPLR 510; Thomas v. Small, 121 A.D.2d 622). All of these witnesses either resided or worked in Bronx County, and their convenience renders the situs of the accident a significant connection to Bronx County.
Concur — Sullivan, J.P., Ross, Ellerin, Wallach and Smith, JJ.