Opinion
2008-2002.
Decided on February 25, 2008.
Patrick J. Cooney, Esq., Attorney for Plaintiff.
Meghan S. Rider, Defendant, pro se.
Defendant in this matrimonial action seeks a change in venue from Yates County to Suffolk County. Defendant states that she has an infant child, does not own a car, and it is a 12 hour round trip to Yates County. Further, it will be a financial burden for her to travel, since she is trying to find a job after being left in Georgia, penniless while five months pregnant.
Plaintiff opposes the defendant's application and by attorney affirmation notes Yates County is a proper venue, since the plaintiff lives in Yates County. Also, there is no reason to believe an impartial trial cannot be had here. Plaintiff argues that the convenience of material witnesses and the ends of justice provision of CPLR § 510 has been consistently interpreted to involve witnesses only, not parties.
Plaintiff in his affidavit in opposition says the defendant left the parties' former residence on her own. Her father sent her a plane ticket. She is not penniless, because the plaintiff has paid on two of her credit cards after she left for a total of $225 a month for four months, and he sent her $2000 on December 21, 2007. He believes the defendant lives with her mother, who has two vehicles, and she has the use of one of them.
Plaintiff also has limited funds. He is an Iraq war veteran, and is presently unemployed, and has spent most of his discharge pay. He was injured, and medically discharged November, 2007.
Clearly, defendant is basing her motion on CPLR § 510(3), since the other two reasons for change of venue do not apply. The case law in this area is sparse. In Bunker v Bunker, 73 AD2d 530, involving post judgment relief, the First Department held that Special Term did not abuse its discretion in denying a change of venue even though the divorce had been obtained in another county. The court stated: "There is no showing that the convenience of material witnesses will be served and the ends of justice promoted by such change of venue. Defendant has not even indicated the substance or materiality of the testimony to be given by these witnesses." Id., cites omitted.
Here, venue having been properly laid in Yates County, and there being competing interests of both parties regarding venue, this Court will retain venue in this matter. The parties may be able to settle some of the issues of the divorce between themselves, and the court urges them to do so to the extent possible. Further, if court appearances are necessary, they can be scheduled with the convenience of the defendant in mind.
The motion is denied.
The foregoing constitutes the Opinion, Decision and Judgment of the Court.
SO ORDERED.