Morris Electronics of Syracuse, Inc. v. Stereo East Developments, Inc.

71 A.D.2d 1061, 420 N.Y.S.2d 811, 1979 N.Y. App. Div. LEXIS 13453

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1979
• Docket: Appeal No. 1
• Status: Published

Opinion

—Order unanimously affirmed, without costs. Memorandum: In this action for money owed on account and upon alleged personal guarantees, Special Term denied defendants’ motion for a discretionary change of venue pursuant to CPLR 510 (subd 3) and granted plaintiffs motion for a preference pursuant to CPLR 3403 (subd [a], par 3). Defendants did not submit an affidavit containing witnesses’ names, addresses and occupations, a full and fair statement of their expected testimony and the basis of such expectations. Special Term did not abuse its discretion in denying their motion for change of venue pursuant to CPLR 510 (Hurlbut v Whalen, 58 AD2d 311). Special Term abused its discretion in granting plaintiffs motion for a preference upon plaintiffs assertion that although it had not sought attachment it feared that the individual defendants would secrete assets in order to render worthless a possible judgment. A CPLR 3403 (subd [a], par 3) preference should only be granted where the circumstances are sufficiently unusual and extreme to justify the extraordinary privilege (see Dodumoff v Lyons, 4 AD2d 626; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3403.10). (Appeal from order of Onondaga Supreme Court—change venue.) Present—Cardamone, J. P., Schnepp, Doerr, Witmer and Moule, JJ.