Mallory v. Long Island Rail Road

245 A.D.2d 493, 666 N.Y.S.2d 34, 1997 N.Y. App. Div. LEXIS 13252

Opinion

—In an action, inter alia, to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated January 31, 1997, which denied its motion pursuant to CPLR 510 (3) to change the venue of the action from Queens County to Suffolk County.

Ordered that the order is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion in denying the defendant’s motion to change the venue of the action from Queens County to Suffolk County based upon “the convenience of material witnesses” (CPLR 510 [3]). The defendant failed to “disclose the facts to which the proposed witnesses will testify at the trial, so that the court may judge whether the proposed evidence of the witnesses is necessary and material” (O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 172). Nor did the defendant sufficiently show how the witnesses in question would be inconvenienced if the venue was not changed (see, O’Brien v Vassar Bros. Hosp., supra, at 172; Murphy v Long Is. R. R., 239 AD2d 472; Prado v Walsh-Atkinson Co., 212 AD2d 489). Miller, J. P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.