Midonick v. Peppertree Hill DevelOpment Corp.

49 A.D.2d 721, 373 N.Y.S.2d 2, 1975 N.Y. App. Div. LEXIS 10655

Opinion

Order, Supreme Court, New York County, entered January 29,1975 granting plaintiffs’ motion for a rehearing and upon rehearing, denying defendants’ motion for a change of venue from New York County to Kings or Queens County (or any other county in the Second Department) unanimously affirmed, with $40 costs and disbursements to respondents. The record does not indicate that "there is reason to believe that an impartial trial cannot be had in the proper county”. (CPLR 510, subd 2.) Plaintiff’s (Millard L. Midonick) official position in New York County does not in and of itself justify an inference that a fair trial cannot be had (Lent v Ryder, 47 App Div 415; Ingo v Casey, 175 Misc 805, affd 260 App Div 1024). Since defendants’ motion was based merely upon a belief that an impartial trial could not be had in New York County without any showing of facts and circumstances demonstrating that the belief was well-founded, Special Term’s denial of the motion constituted a proper exercise of discretion. Concur—Murphy, J. P., Lupiano, Tilzer and Lane, JJ.