Galyas v. Giordano

Full title: Galyas v. Giordano

Court: Supreme Court of New York, Appellate Division, Second Department

Date published: Jul 28, 1997

241 A.D.2d 539 (N.Y. App. Div. 1997)

663 N.Y.S.2d 835

Opinion

241 A.D.2d 539 663 N.Y.S.2d 835 James GALYAS, Plaintiff-Respondent, v. Ruggiero GIORDANO, et al., Defendants-Respondents, Brooklyn Union Gas Company, Appellant (Action No. 1). Laurence LEDANOIS, Plaintiff-Respondent, v. BROOKLYN UNION GAS COMPANY, Appellant, Ruggiero Giordano, et al., Defendants-Respondents (Action No. 2). 1997-06997 Supreme Court of New York, Second Department July 28, 1997.

Cullen and Dykman, Brooklyn (Peter S. Read, of counsel), for appellant in both actions.

Levine & Gilbert, New York City (Richard Gilbert, of counsel), for plaintiff-respondent in Action No. 1.

In two related actions to recover damages for personal injuries which were joined for trial, the defendant Brooklyn Union Gas Company appeals from (1) so much of a resettled order of the Supreme Court, Kings County (Feinberg, J.), dated April 11, 1996, as denied its cross motion for a change of venue to Richmond County, and (2) and order of the same court, dated July 26, 1996, which directed it to disclose three investigative reports to all parties.

ORDERED that the order dated April 11, 1996, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated July 26, 1996, is affirmed; and it is further,

ORDERED that the plaintiff-respondent in Action No. 1, James Galyas, is awarded one bill of costs.

[663 N.Y.S.2d 836]The Supreme Court properly directed the appellant Brooklyn Union Gas Company (hereinafter BUG) to disclose three internal reports concerning a fire at the subject premises. BUG failed to meet its burden of demonstrating that the reports were not prepared in the regular course of business but were prepared solely in anticipation of litigation (see, Vivitorian Corp. v. First Cent. Ins. Co., 203 A.D.2d 452, 610 N.Y.S.2d 604; Crazytown Furniture v. Brooklyn Union Gas Co., 145 A.D.2d 402, 535 N.Y.S.2d 401; CPLR 3101[d][2]; CPLR 3101[g]; see also, Agovino v. Taco Bell 5083, 225 A.D.2d 569, 639 N.Y.S.2d 111).

The Supreme Court did not improvidently exercise its discretion in denying BUG's motion for a change of venue from Kings County to Richmond County. Venue was properly designated in Kings County by the plaintiff (CPLR 503[c] ), and BUG failed to make the required detailed evidentiary showing that the convenience of nonparty witnesses would be served by a change of venue (see, CPLR 510[3]; O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 622 N.Y.S.2d 284; see also, Schneider v. Montalbano, 223 A.D.2d 586, 636 N.Y.S.2d 413).

O'BRIEN, J.P., and JOY, GOLDSTEIN and LUCIANO, JJ., concur.