Goonan v. Shapiro

49 A.D.2d 728, 372 N.Y.S.2d 668, 1975 N.Y. App. Div. LEXIS 10668

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 1975
• Status: Published

Opinion

Orders entered in the Supreme Court, New York County, on May 2, 1975 and May 7, 1975 granting defendants’ motions to vacate the note of issue and to strike the action from the calendar and for a change of venue from New York to Onondaga County unanimously affirmed, without costs or disbursements. Plaintiff seeks damages for conversion, false arrest and false imprisonment, all arising out of the same incident on January 22, 1974 in Syracuse, Onondaga County, New York. Special Term had wide discretion to grant or deny the relief sought. We cannot say that there was an abuse of discretion in striking the cause from the calendar or in ordering trial in Onondaga County for the convenience of witnesses. Defendants have satisfactorily shown that four of their witnesses to the actual occurrence reside in Syracuse. On the other hand plaintiff has attempted to show that several of his witnesses are New York City residents, but the materiality or, indeed, the competence of their proffered testimony has not been satisfactorily established. Where the convenience of witnesses is evenly balanced it has been held that an action will be tried where the cause of action had its genesis. (Feiden v State of New York, 5 AD2d 926.) Furthermore, all of the acts upon which liability is predicated took place in Onondaga County. Plaintiff’s argument that he cannot receive a fair trial in Syracuse is unpersuasive. The orders appealed from should be affirmed. Concur—Markewich, J. P., Kupferman, Murphy, Tilzer and Nunez, JJ.