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Grizzel v. F.M. Transmix Corp.

Appellate Division of the Supreme Court of New York, Second Department
Apr 29, 1991
172 A.D.2d 802 (N.Y. App. Div. 1991)

Opinion

April 29, 1991

Appeal from the Supreme Court, Kings County (Williams, J.).


Ordered that the order is reversed, with costs, the defendants' motion is granted, the cross motion is denied, and the Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the Supreme Court, Suffolk County, all papers filed in the action and certified copies of all minutes and entries pursuant to CPLR 511 (d).

It is settled that a plaintiff will forfeit the right to select the venue of an action by choosing an improper venue in the first instance (see, Singer v. Lowi, 132 A.D.2d 542; Kelson v. Nedicks Stores, 104 A.D.2d 315; Siegel, N.Y. Prac § 123; 2 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 511.04). The improper designation of Kings County by the plaintiff precludes her from now designating Queens County as the county of venue.

Since the defendant Edward T. Nally resides in Suffolk County, the defendants' motion for a change of venue to that county should have been granted (see, CPLR 503 [a]). Further, while the place of trial may be changed on motion of a party for "the convenience of material witnesses" (CPLR 510), such a motion must be supported by a statement naming the witnesses and setting forth what their testimony would be. Absent such a showing, the motion must be denied (see, Alexandre v. Pepsi-Cola Bottling Co., 150 A.D.2d 742; Ferrigno v. General Motors Corp., 134 A.D.2d 479; Greene v. Hillcrest Gen. Hosp., 130 A.D.2d 621). As the plaintiff herein failed to set forth the nature of the potential testimony by her physician, the court improperly granted her cross motion to change venue to Queens County on that basis. Mangano, P.J., Brown, Sullivan, Harwood and Miller, JJ., concur.


Summaries of

Grizzel v. F.M. Transmix Corp.

Appellate Division of the Supreme Court of New York, Second Department
Apr 29, 1991
172 A.D.2d 802 (N.Y. App. Div. 1991)
Case details for

Grizzel v. F.M. Transmix Corp.

Case Details

Full title:SANDRA GRIZZEL, Respondent, v. F.M. TRANSMIX CORP. et al., Appellants

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

Date published: Apr 29, 1991

Citations

172 A.D.2d 802 (N.Y. App. Div. 1991)