Mohsin v. Port Authority

83 A.D.3d 536, 920 N.Y.S.2d 664

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 2011
• Status: Published

Opinion

Order, Supreme Court, Bronx County (John A. Barone, J.), entered on or about December 23, 2009, which, in an action for personal injuries, granted defendants’ motion to change venue from Bronx County to Queens County pursuant to CPLR 510 (3), unanimously reversed, on the law, without costs, and the motion denied.

Defendants’ moving papers were deficient inasmuch as they failed to provide the names, addresses and occupation of prospective nonparty witnesses, the proposed testimony, the witnesses’ willingness to testify, and that the witnesses will be inconvenienced by the present venue (see Jacobs v Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d 299 [2004]); the convenience of party witnesses is not a factor (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]). The affidavits submitted for the first time in defendants’ reply papers should not have been considered by the court, as they improperly raised new facts not directly responsive to plaintiffs opposition, which merely highlighted the deficiency of defendants’ initial papers (see Root v Brotmann, 41 AD3d 247 [2007]; Job v Subaru Leasing Corp., 30 AD3d 159 [2006]). Concur—Tom, J.P., Mazzarelli, Acosta, Renwick and Freedman, JJ.