Marzello v. Kiamesha Concord, Inc.

26 A.D.2d 986, 274 N.Y.S.2d 1002, 1966 N.Y. App. Div. LEXIS 2997

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1966
• Status: Published

Opinion

Staley, Jr., J.

Appeals from two orders of Special Term, Albany County, denying (1) the motion of the defendant for a change of the place of trial of the action, and (2) the motion of the defendant to strike a note of issue filed in Schenectady County. Respondent was injured in his hotel room while a guest at defendant’s hotel located in Sullivan County. The appellant seeks a change of the place of trial from Schenectady County to Sullivan County for the convenience of material witnesses who live in Sullivan County and, on the further grounds, that the cause of action arose in Sullivan County, and that a speedier trial may be had there. Since the material witnesses that the defendant intends to present at the trial were all employees of the defendant at the time of the accident, their convenience should not be considered above that of plaintiff’s eyewitnesses to the accident who live in the vicinity of Schenectady County or the convenience of plaintiff’s treating physician who lives in Schenectady County. Plaintiff was entitled to commence his action in the county of his residence and the facts stated in the affidavits submitted on the motion, support the discretionary determination by Special Term that the place of trial should not be changed. (Reichenthaler v. Horton Mem. Hosp., 2 A D 2d 630.) The record indicates that the defendant had ample opportunity to complete its pretrial remedies prior to filing of the note of issue and, therefore, the motion to strike the note of issue was properly denied. Orders affirmed, with one hill of costs. Gibson, P. J., Herlihy and Reynolds, JJ., concur; Aulisi, J., not voting.