Cilmi v. Greenberg

273 A.D.2d 266, 710 N.Y.S.2d 902, 2000 N.Y. App. Div. LEXIS 6542

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 2000
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Richmond County (Mastro, J.), entered September 27, 1999, which denied their cross motion for a change of venue from Richmond County to New York County.

Ordered that the order is affirmed, with costs.

A motion for a change of venue pursuant to CPLR 510 (3) based upon the convenience of the witnesses must (1) set forth the names, addresses, and occupations of the prospective witnesses, (2) disclose the facts as to which the proposed witnesses will testify, (3) state whether the witnesses are willing to testify, and (4) explain how these witnesses would be inconvenienced should a change of venue be denied (see, McGarry v Columbia Greene Med. Ctr., 260 AD2d 451; O’Brien v Vassar Bros. Hosp., 207 AD2d 169). The defendants’ submissions failed to satisfy all of the required elements. In addition, all of the witnesses mentioned by the defendants were either the individual defendants themselves, or their employees, whose convenience is not a factor in considering a change of venue based on CPLR 510 (3) (see, Rollinson v Pergament Acquisition Corp., 228 AD2d 186; Flynn v Niagara Univ., 198 AD2d 262). Accordingly, the Supreme Court providently exercised its discretion in denying the defendants’ cross motion. Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.