McElroy v. Guida

Appellate Division of the Supreme Court of New York

McElroy v. Guida

196 A.D.2d 859, 602 N.Y.S.2d 63, 1993 N.Y. App. Div. LEXIS 8772

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 27, 1993

StatusPublished

Cited by5 cases

This text of 196 A.D.2d 859 (McElroy v. Guida) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McElroy v. Guida, 196 A.D.2d 859, 602 N.Y.S.2d 63, 1993 N.Y. App. Div. LEXIS 8772 (N.Y. Ct. App. 1993).

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Opinion

In a medical malpractice action, the defendant Anthony Guida appeals from (1) an order of the Supreme Court, Suffolk County (Baisley, J.), entered March 27, 1991, which denied his motion for a change of venue, and (2) an order of the same court, dated September 18, 1991, which denied his motion, denominated a motion to renew, but which was, in actuality, a motion for reargument.

Ordered that the appeal from the order dated September 18, 1991, is dismissed; and it is further,

Ordered that the order entered March 27, 1991 is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The plaintiff was a resident of Bronx County and thus had the legal right to designate that county as the place for the trial of this action (see, CPLR 503 [b]; McNamara v Penner, 123 NYS2d 576). The Supreme Court therefore correctly denied so much of the appellant’s original motion as was based on a claim that the county designated by the plaintiff was not proper (see, CPLR 510 [1]). We also agree with the Supreme Court that the appellant failed to satisfy his burden of showing that the convenience of the witnesses warranted a change of venue from Bronx County to Suffolk County (see, CPLR 510 [3]; see, e.g., Ryan v Genovese Pharmacy, 184 AD2d 628; Levenstein v Parks, 163 AD2d 367; Alexandre v Pepsi-Cola Bottling Co., 150 AD2d 742; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C510:3). The appellant’s motion, purportedly to renew, was not based on facts which were unavailable to him at the time of his original motion. Therefore, that motion was in actuality a motion for reargument. Therefore, the order denying that motion is not appealable (see, e.g., Incorporated Vil. of Freeport v Sanders, 192 AD2d 508). Bracken, J. P., Sullivan, Copertino and Pizzuto, JJ., concur.

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In a medical malpractice action, the defendant Anthony Guida appeals from (1) an order of the Supreme Court, Suffolk County (Baisley, J.), entered March 27, 1991, which denied his motion for a change of venue, and (2) an order of the same court, dated September 18, 1991, which denied his motion, denominated a motion to renew, but which was, in actuality, a motion for reargument.

Ordered that the appeal from the order dated September 18, 1991, is dismissed; and it is further,

Ordered that the order entered March 27, 1991 is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The plaintiff was a resident of Bronx County and thus had the legal right to designate that county as the place for the trial of this action (see, CPLR 503 [b]; McNamara v Penner, 123 NYS2d 576). The Supreme Court therefore correctly denied so much of the appellant’s original motion as was based on a claim that the county designated by the plaintiff was not proper (see, CPLR 510 [1]). We also agree with the Supreme Court that the appellant failed to satisfy his burden of showing that the convenience of the witnesses warranted a change of venue from Bronx County to Suffolk County (see, CPLR 510 [3]; see, e.g., Ryan v Genovese Pharmacy, 184 AD2d 628; Levenstein v Parks, 163 AD2d 367; Alexandre v Pepsi-Cola Bottling Co., 150 AD2d 742; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C510:3). The appellant’s motion, purportedly to renew, was not based on facts which were unavailable to him at the time of his original motion. Therefore, that motion was in actuality a motion for reargument. Therefore, the order denying that motion is not appealable (see, e.g., Incorporated Vil. of Freeport v Sanders, 192 AD2d 508). Bracken, J. P., Sullivan, Copertino and Pizzuto, JJ., concur.

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Bluebook (online)

196 A.D.2d 859, 602 N.Y.S.2d 63, 1993 N.Y. App. Div. LEXIS 8772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelroy-v-guida-nyappdiv-1993.

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