Byrne v. Ryder Truck Rental, Inc.

292 A.D.2d 326, 741 N.Y.S.2d 18, 2002 N.Y. App. Div. LEXIS 3268

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 2002
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered May 11, 2001, which denied defendants’ motion to change venue from New York County to Saratoga County pursuant to CPLR 510 (3), and order, Supreme Court, New York County (Milton Tingling, J.), entered on or about October 12, 2001, which, to the extent appealable, denied defendants’ motion to renew their change of venue motion, unanimously affirmed, without costs.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident that took place in Sara-toga County, the motion court correctly denied defendants’ motion to change venue pursuant to CPLR 510 (3). Although defendants identified a prospective nonparty witness, they failed to make the requisite demonstration that the witness would be willing to give testimony material to the issues in the case and that the witness would be seriously inconvenienced if she had to travel to New York County to testify (see, CPLR 510 [3]; Heinemann v Grunfeld, 224 AD2d 204). Renewal was properly denied since the purportedly new material offered by defendants was available to them at the time of their original motion (see, Elson v Defren, 283 AD2d 109, 113). Moreover, the ostensibly new material would not have required a different disposition since defendants made no demonstration as to the materiality of the anticipated testimony (see, Pellegrino v File, 283 AD2d 266; Velasquez v C.F.T., Inc., 240 AD2d 178). Concur — Mazzarelli, J.P., Andrias, Wallach, Rubin and Marlow, JJ.