McBride v. St. Vincent's Hospital & Medical Center

271 A.D.2d 581, 706 N.Y.S.2d 449, 2000 N.Y. App. Div. LEXIS 4330

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Patterson, J.), dated September 9, 1999, which denied their motion to change the venue of the action from Kings County to Richmond County.

Ordered that the order is affirmed, with costs.

The defendants’ demand for a change of venue, predicated on the ground that the designated county was improper (see, CPLR 510 [1]), was not served with the answer or before the answer was served (see, CPLR 511 [a]), but was made over two years later and was therefore addressed to the court’s discretion (see, Horowicz v RSD Transp., 249 AD2d 511; O’Connor v Roman Catholic Diocese, 231 AD2d 700; Fitzpatrick v Sullivan, Magee & Sullivan, 49 AD2d 902). The Supreme Court providently exercised its discretion in denying the motion. The plaintiff established through documentary evidence that at the time this action was commenced, she intended to retain her residence of 30 years in Kings County (see, Mandelbaum v Mandelbaum, 151 AD2d 727; Siegfried v Siegfried, 92 AD2d 916; Katz v Siroty, 62 AD2d 1011, 1012; CPLR 503 [a]). Furthermore, the defendants’ delay in moving for a change of venue was not caused by any willful omission or misleading statement by the plaintiff regarding her residence {see, Horowicz v RSD Transp., supra). Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.