Kirschner v. Cusa

211 A.D.2d 665, 622 N.Y.S.2d 63, 1995 N.Y. App. Div. LEXIS 307

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1995
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Orange County (Barone, J.), dated August 26, 1993, which denied their motion for a change of venue from Orange County to Ulster County.

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

The plaintiffs, residents of Ulster County, improperly designated venue of this action in Orange County, where none of the parties reside, thereby forfeiting their right to designate venue (see, CPLR 503 [a]; Kaplan v Waldbaum’s Inc., 208 AD2d 683; Nixon v Federated Dept. Stores, 170 AD2d 659). With their answer the defendants served a demand to change venue and timely moved to change venue to Ulster County, where they also reside. Consequently, the Supreme Court should have granted the motion (see, CPLR 510 [1]; 511; Kaplan v Waldbaum’s Inc., supra; Nixon v Federated Dept. Stores, supra, at 660). Sullivan, J. P., Rosenblatt, Altman, Hart and Friedmann, JJ., concur.