Opinion
5914N Index 154845/14
03-06-2018
Keesha CARR, Plaintiff–Respondent, v. TRANS AMERICAN EXPRESS, INC., et al., Defendants–Appellants.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louise M. Cherkis of counsel), for appellants. Law Firm of Vaughn, Weber & Prakope, PLLC, Mineola (John A. Weber IV of counsel), for respondent.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louise M. Cherkis of counsel), for appellants.
Law Firm of Vaughn, Weber & Prakope, PLLC, Mineola (John A. Weber IV of counsel), for respondent.
Friedman, J.P., Tom, Webber, Kern, JJ.
Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered August 18, 2016, which, in an action arising out of a motor vehicle accident that occurred in Bronx County, denied defendants' motion to change venue from New York County to Nassau County, and granted plaintiff's cross motion to change venue from New York County to Bronx County, unanimously reversed, on the law and the facts, the motion granted, and the cross motion denied, without costs.
Plaintiff Keesha Carr chose an improper place of trial in the first instance by placing venue in New York County. It is undisputed that she resided in Nassau County when the action was commenced; plaintiff does not allege that the individual defendant resided, or that the corporate defendant had a principal office, within New York County.
Supreme Court improvidently exercised its discretion by denying defendants' motion to change venue (see Newman v. Physicians' Reciprocal Insurers , 204 A.D.2d 210, 612 N.Y.S.2d 863 [1st Dept. 1994] ), because they established that plaintiff resided in Nassau County when the action was commenced ( CPLR 503 [a] ).
Although plaintiff was not precluded from making an application to change venue pursuant to CPLR 510(3) (see Berberich v. York Scaffold Equip. Corp. , 177 A.D.2d 451, 451–452, 576 N.Y.S.2d 547 [1st Dept. 1991] ; Carrasco v. Cablevision Sys. Corp. , 248 A.D.2d 122, 123, 669 N.Y.S.2d 808 [1st Dept. 1998] ), the court improvidently exercised its discretion in granting her cross motion because plaintiff failed to demonstrate, inter alia, the existence of material witnesses whose convenience is at issue, and the substance of their testimony (see Oquendo v. Nationwide Ins. Co. , 270 A.D.2d 174, 175–176, 705 N.Y.S.2d 347 [1st Dept. 2000] ; Bonfeld v. Suburban Tr. Corp. , 236 A.D.2d 335, 336, 654 N.Y.S.2d 354 [1st Dept. 1997] ; Quiles v. Orsi , 182 A.D.2d 499, 499–500, 582 N.Y.S.2d 22 [1st Dept. 1992] ).