Johnson v. Cherry Grove Island Management, Inc.

190 A.D.2d 598

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 1993
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Lewis R. Friedman, J.), entered December 22, 1988, which granted defendants-respondents’ motion to change venue from Bronx County to Suffolk County, is affirmed.

This is an action to recover damages for personal injuries sustained by plaintiff when she dove into the shallow end of a motel swimming pool which is alleged to have been negligently maintained, controlled and supervised by defendants owner, lessor and manager of the premises.

In moving pursuant to CPLR 510 (3) to change venue to Suffolk County, where the accident occurred, from Bronx County, where plaintiff resides, defendants-respondents identified and set forth the expected testimony of four witnesses, three of whom reside in Suffolk County. Of the eleven witnesses identified by plaintiff, two were known to reside in Bronx County. Plaintiff did not distinguish the expected testimony of each witness, and instead collectively reported that they would all testify with respect to lack of markings or warnings on the pool. Such cumulative testimony does not provide a heavily weighted factor to consider in a motion to change venue based upon the convenience of non-party witnesses (see, Callahan v Cortland Mem. Hosp., 127 AD2d 921).

The litigants having provided a nearly equal number of material witnesses, this transitory action should be tried where the cause of action arose (see, McGuire v General Elec. Co., 117 AD2d 523, 523-524). Moreover, plaintiff was treated in a Suffolk County hospital, principally by a Suffolk County neurosurgeon, for almost eight weeks following the accident. Although plaintiff received additional treatment from a neurosurgeon, an internist and a chiropractor, the neurosurgeon maintains his office in Westchester County, and the testimony of the internist and chiropractor, both of whom maintain offices in Bronx County, is not likely, given the injuries, to be as material as that of the two original neurosurgeons.

Finally, we conclude that the motion was timely, as it was made two months after defendants’ discovery demands were met, and we note, in any event, that a motion to change venue pursuant to CPLR 510 may be made at any time (Soufan v Argo Pneumatic Co., 170 AD2d 289, 291). Significantly, no prejudice has been demonstrated in the case at bar. We have considered plaintiff’s other claims and find them to be without merit. Concur — Carro, J. P., Kupferman and Kassal, JJ.