Opinion
5403N Index 23930/14E
01-09-2018
Ivan GORDILLO, Plaintiff–Appellant, v. CHAMP HILL LLC, Defendant–Respondent.
Greenberg Law, P.C., New York (Raquel J. Greenberg of counsel), for appellant. Law Office of Steven G. Fauth, LLC, New York (Steven G. Fauth of counsel), for respondent.
Greenberg Law, P.C., New York (Raquel J. Greenberg of counsel), for appellant.
Law Office of Steven G. Fauth, LLC, New York (Steven G. Fauth of counsel), for respondent.
Friedman, J.P., Richter, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered August 12, 2016, which, in an action for personal injuries, inter alia, granted defendants' motion to change venue from Bronx County to New York County, unanimously affirmed, without costs. The untimeliness of defendant's demand for a change of venue and the subsequent motion is excusable because the summons improperly indicated that plaintiff resided in Bronx County (see Philogene v. Fuller Auto Leasing, 167 A.D.2d 178, 561 N.Y.S.2d 250 [1990] ; see also Oluwatayo v. Dulinayan, 142 A.D.3d 113, 35 N.Y.S.3d 84 [1st Dept. 2016] ; Mann v. Janyear Trading Corp., 83 A.D.3d 566, 922 N.Y.S.2d 303 [1st Dept. 2011] ). The parties do not contest the fact that while plaintiff does not reside on the island of Manhattan, his Marble Hill building is located in New York County, and not the Bronx. The record shows that defendant promptly moved after ascertaining that the statement made by plaintiff was incorrect (see Mann at 566, 922 N.Y.S.2d 303 ). Plaintiff's arguments that defendant failed to show due diligence and was guilty of laches are unpersuasive, as the motion was made pursuant to CPLR 510(1) (improper county) and not CPLR 510(3) (convenience of the witnesses).