Byron v. Spektor

266 A.D.2d 253, 698 N.Y.S.2d 290, 1999 N.Y. App. Div. LEXIS 11336

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1999
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, the defendant Iosif Spektor appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated April 22, 1999, which denied his motion to change venue from Kings County to New York County.

Ordered that the order is affirmed, with costs.

The branch of the defendant’s motion which was to change venue based on CPLR 510 (1) was untimely since no demand to change venue was served with the answer or before the answer had been served (see, CPLR 511 [a], [b]; Newman v Physicians’ Reciprocal Insurers, 204 AD2d 210). While in certain limited circumstances a court confronted with an untimely motion for a change of venue may exercise its discretion to grant the motion {see, Newman v Physicians’ Reciprocal Insurers, supra), the defendant in this case did not present an adequate basis to support a change of venue based on CPLR 510 (1) (see, Montoya v Brown, 233 AD2d 374).

The branch of the defendant’s motion which was to change venue based on CPLR 510 (3) was also properly denied, as the defendant’s submission was insufficient to support a change of venue on that ground (see, O’Brien v Vassar Bros. Hosp., 207 ). O’Brien, J. P., Sullivan, Goldstein and Feuerstein, JJ., concur.