McComb v. Hilton Heights Apartments, Inc.

43 A.D.2d 972, 352 N.Y.S.2d 226, 1974 N.Y. App. Div. LEXIS 5707

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1974
• Status: Published

Opinion

In an action, inter alla, to recover damages for breach of contract, defendants Hilton Heights Apartments, Inc., Celli and Dinolfo appeal, as limited by their brief, from so much of an order of Supreme Court, Kings County, dated September 25, 1972, as denied the branch of their motion which was for a change of venue from Kings Cotinty to Monroe County. Order reversed insofar as appealed from, with $20 costs and disbursements, and said branch of the motion granted. The number of material and necessary witnesses in Monroe County clearly outnumber those in Kings County and it would serve the convenience of the preponderance of the witnesses to change the venue to Monroe County (CPLR 510, subd. 3). (See Slamin v. Whispell, 5 A D 2d 296; Cole v. Ocean Acc. é Guar. Gorp., 179 App. Div. 442; King v. Vanderbilt, 7 How. Prac. 385.) Further, a change of venue is in the interests of justice in the instant case (CPLR 510, subd. 3), because’Monroe County is the place where this transitory .action arose' (Slavin V. Whispell, supra), because several of the witnesses are officials in Monroe County and should not be kept from their duties unnecessarily (Stevens v. Bancroft, 275 App. Div. 864; Latham v. Devine, 276 App. Div. 824) and because the Trial Calendar of Monroe County is less crowded and a speedier trial can be afforded there (Commercial State Bank é Trust Go. of New York v. Bita, 4 A D 2d 674). Gulotta, P. J., Hopkins, Martuscello, Latham and Brennan, JJ., concur.