Jarrett v. Berner

Appellate Division of the Supreme Court of New York

Jarrett v. Berner

8 A.D.3d 236, 777 N.Y.S.2d 317, 2004 N.Y. App. Div. LEXIS 7482

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

DecidedJune 1, 2004

StatusPublished

Cited by4 cases

This text of 8 A.D.3d 236 (Jarrett v. Berner) 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.

Bluebook

Jarrett v. Berner, 8 A.D.3d 236, 777 N.Y.S.2d 317, 2004 N.Y. App. Div. LEXIS 7482 (N.Y. Ct. App. 2004).

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Opinion

In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated January 7, 2004, which granted the defendants’ motion to change the venue of the action from Kings County to Westchester County.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the Clerk of the Supreme Court, Westchester County, is directed to deliver to the Clerk of the Supreme [237]*237Court, Kings County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511 [d]).

The Supreme Court erred in granting the defendants’ motion to change venue of the action from Kings County to Westchester County pursuant to CPLR 510 (3). The defendants did not establish their entitlement to a change of venue based on the convenience of material, nonparty-witnesses (see O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173 [1995]). The defendants failed to demonstrate how the treating podiatrist, or any other material, nonparty-witness, would be inconvenienced in the event that a change of venue were not granted (see Small v Chrysler Corp., 288 AD2d 208 [2001]; Blumberg v Salem Truck Leasing, 276 AD2d 577 [2000]; Mallory v Long Is. R.R., 245 AD2d 493 [1997]). Accordingly, the motion should have been denied. Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.

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In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated January 7, 2004, which granted the defendants’ motion to change the venue of the action from Kings County to Westchester County.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the Clerk of the Supreme Court, Westchester County, is directed to deliver to the Clerk of the Supreme [237]*237Court, Kings County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511 [d]).

The Supreme Court erred in granting the defendants’ motion to change venue of the action from Kings County to Westchester County pursuant to CPLR 510 (3). The defendants did not establish their entitlement to a change of venue based on the convenience of material, nonparty-witnesses (see O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173 [1995]). The defendants failed to demonstrate how the treating podiatrist, or any other material, nonparty-witness, would be inconvenienced in the event that a change of venue were not granted (see Small v Chrysler Corp., 288 AD2d 208 [2001]; Blumberg v Salem Truck Leasing, 276 AD2d 577 [2000]; Mallory v Long Is. R.R., 245 AD2d 493 [1997]). Accordingly, the motion should have been denied. Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.

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Bluebook (online)

8 A.D.3d 236, 777 N.Y.S.2d 317, 2004 N.Y. App. Div. LEXIS 7482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jarrett-v-berner-nyappdiv-2004.

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