Opinion
July 20, 1983
William A. Sekellick for Roy Track Co., Inc., defendant.
Ainsworth, Sullivan, Tracy Knauf for Goodyear Tire Rubber Company, defendant.
Robert J. Farrell for plaintiff.
This is a motion by defendant Roy Track Co., Inc., for an order changing the venue of this action from Albany County to Ontario County, upon the ground that the county designated by the plaintiff (Albany) is not a proper county, or, in the alternative, upon the ground that the convenience of material witnesses and the ends of justice will be promoted by the change.
The underlying action arises out of an accident which occurred in Ontario County involving a vehicle owned by the moving defendant, Roy Track Co., Inc., which allegedly damaged plaintiff's guiderails and posts. The judgment demanded is money damages for repairing the said guiderails.
The movant contends that the action is governed by the venue provisions of CPLR 507 and, therefore, the action must be brought in the county in which the real property involved is situated; that is, the movant contends that once affixed to the New York State Thruway, guiderails and posts become fixtures appurtenant to the real property upon which they are located (Ontario County).
This court cannot agree with this contention of the movant. The action does not "affect the title to, or the possession, use or enjoyment of, real property" (CPLR 507), but is merely one for money damages measured by a claim for injury to the property.
The further contention of the movant that the court should grant the change of venue on the ground of convenience of witnesses is also untenable in that there is no supporting affidavit from the material witness whose convenience is sought to be served. The moving papers are deficient in this respect and the motion for a change of venue is denied.