Manzari v. Burrows

89 A.D.3d 440, 931 N.Y.2d 864

Opinion

Defendants failed to sustain their burden of showing entitlement to a discretionary change of venue pursuant to CPLR 510 (3) (see Aretakis v Tarantino, 300 AD2d 160 [2002]). In particular, defendants failed to present “affidavits or other proofs” from material witnesses claiming that they would be inconvenienced by testifying in New York County (Herrera v R. Conley Inc., 52 AD3d 218, 219 [2008]). Even if such affidavits are not required, defense counsel’s assertion that the inconvenience was “obvious” and “manifest,” is insufficient to meet defendants’ burden (see Hernandez v Rodriguez, 5 AD3d 269, 270 [2004]). In addition, defendants failed to show that the testimony of the purportedly inconvenienced nonparty witnesses was material and necessary (Argano v Scuderi, 6 AD3d 211, 212 [2004]). Concur — Friedman, J.P., Catterson, Moskowitz, Freedman and Abdus-Salaam, JJ.