Frangos v. Town of Niagara

Appellate Division of the Supreme Court of New York

Frangos v. Town of Niagara

307 A.D.2d 727, 762 N.Y.S.2d 330, 2003 N.Y. App. Div. LEXIS 7875

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 3, 2003

StatusPublished

Cited by1 cases

This text of 307 A.D.2d 727 (Frangos v. Town of Niagara) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Frangos v. Town of Niagara, 307 A.D.2d 727, 762 N.Y.S.2d 330, 2003 N.Y. App. Div. LEXIS 7875 (N.Y. Ct. App. 2003).

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Opinion

Appeal from an order of Supreme Court, Erie County (Rath, Jr., J.), entered July 8, 2002, which, inter alia, granted defendant’s motion seeking a discretionary change of venue.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed in the exercise of discretion, without costs, the motion is denied and the cross motion is granted.

Memorandum: Plaintiffs appeal from an order granting defendant’s motion seeking a discretionary change of venue to Niagara County and denying plaintiffs’ cross motion to retain venue in Erie County. Defendant never moved to change venue as a matter of right (see CPLR 510 [1]; 511 [b]), and thus forfeited its rights in that respect. Our standard of review on this appeal “is not whether * * * Supreme Court abused its discretion, but instead, whether such discretion was exercised in a provident manner” (O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 172 [1995]), and here we conclude that the court improvidently exercised its discretion in granting the motion. Defendant failed to meet its burden of establishing the requisite criteria to warrant a change of venue based on the convenience of material witnesses (see CPLR 510 [3]; O’Brien, 207 AD2d at 172-173). We therefore reverse the order, deny defendant’s motion and grant plaintiffs’ cross motion. Present — Pigott, Jr., P.J., Pine, Hurlbutt, Burns and Lawton, JJ.

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Appeal from an order of Supreme Court, Erie County (Rath, Jr., J.), entered July 8, 2002, which, inter alia, granted defendant’s motion seeking a discretionary change of venue.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed in the exercise of discretion, without costs, the motion is denied and the cross motion is granted.

Memorandum: Plaintiffs appeal from an order granting defendant’s motion seeking a discretionary change of venue to Niagara County and denying plaintiffs’ cross motion to retain venue in Erie County. Defendant never moved to change venue as a matter of right (see CPLR 510 [1]; 511 [b]), and thus forfeited its rights in that respect. Our standard of review on this appeal “is not whether * * * Supreme Court abused its discretion, but instead, whether such discretion was exercised in a provident manner” (O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 172 [1995]), and here we conclude that the court improvidently exercised its discretion in granting the motion. Defendant failed to meet its burden of establishing the requisite criteria to warrant a change of venue based on the convenience of material witnesses (see CPLR 510 [3]; O’Brien, 207 AD2d at 172-173). We therefore reverse the order, deny defendant’s motion and grant plaintiffs’ cross motion. Present — Pigott, Jr., P.J., Pine, Hurlbutt, Burns and Lawton, JJ.

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Bluebook (online)

307 A.D.2d 727, 762 N.Y.S.2d 330, 2003 N.Y. App. Div. LEXIS 7875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frangos-v-town-of-niagara-nyappdiv-2003.

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