Opinion
11-25-2015
Robert PALERMO, appellant, et al., plaintiff, v. Patricia WHITE, et al., defendants,Family Residences and Essential Enterprises, Inc., et al., respondents.
Parker Waichman LLP, Port Washington, N.Y. (Jay L.T. Breakstone and Brett A. Zekowski of counsel), for appellant. Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (Eric J. Koplowitz of counsel), for respondents.
Parker Waichman LLP, Port Washington, N.Y. (Jay L.T. Breakstone and Brett A. Zekowski of counsel), for appellant.
Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (Eric J. Koplowitz of counsel), for respondents.
Opinion
In an action to recover damages for personal injuries, the plaintiff Robert Palermo appeals from an order of the Supreme Court, Kings County (Silber, J.), dated February 5, 2015, which granted the motion of the defendants Family Residences and Essential Enterprises, Inc., and Matthew Krauss pursuant to CPLR 510(3) to change the venue of the action from Kings County to Suffolk County.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the motion of the defendants Family Residences and Essential Enterprises, Inc., and Matthew Krauss pursuant to CPLR 510(3) to change the venue of the action from Kings County to Suffolk County is denied, and the Clerk of the Supreme Court, Suffolk County, is directed to deliver to the Clerk of the Supreme Court, Kings County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511[d] ).
The Supreme Court improvidently exercised its discretion in granting the motion of the defendants Family Residences and Essential Enterprises, Inc., and Matthew Krauss (hereinafter together the movants) pursuant to CPLR 510(3) to change the venue of the action from Kings County to Suffolk County. The movants failed to satisfy their burden of demonstrating that the convenience of material witnesses and the ends of justice would be better served by a change of venue (see CPLR 510[3]; Lapidus v. 1050 Tenants Corp., 94 A.D.3d 950, 950–951, 943 N.Y.S.2d 129; McManmon v. York Hill Hous., Inc., 73 A.D.3d 1137, 1138, 903 N.Y.S.2d 72; O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 170, 172–173, 622 N.Y.S.2d 284). The convenience of Krauss himself, a party to this action, is not a factor in considering a change of venue based on CPLR 510(3) (see Nova Cas. Co. v. RPE, LLC, 115 A.D.3d 717, 718, 981 N.Y.S.2d 582; McManmon v. York Hill Hous., Inc., 73 A.D.3d at 1138, 903 N.Y.S.2d 72; Curry v. Tysens Park Apts., 289 A.D.2d 191, 733 N.Y.S.2d 907). Furthermore, the defendants failed to establish that Krauss is unable to travel to Kings County due to his health (see Zinker v. Zinker, 185 A.D.2d 698, 699, 586 N.Y.S.2d 66; Hoyt v. Le Bel, 120 A.D.2d 973, 974, 502 N.Y.S.2d 888; cf. DeGregorio v. DeGregorio, 251 A.D.2d 366, 367, 672 N.Y.S.2d 814; Messinger v. Festa, 94 A.D.2d 792, 463 N.Y.S.2d 235).
LEVENTHAL, J.P., AUSTIN, ROMAN, MILLER and BARROS, JJ., concur.