Narvaez v. Sammartino

Appellate Division of the Supreme Court of New York

Narvaez v. Sammartino

2017 NY Slip Op 7187, 154 A.D.3d 500, 61 N.Y.S.3d 501

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

DecidedOctober 12, 2017

Docket4657N

StatusPublished

Cited by234 cases

This text of 2017 NY Slip Op 7187 (Narvaez v. Sammartino) 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

Narvaez v. Sammartino, 2017 NY Slip Op 7187, 154 A.D.3d 500, 61 N.Y.S.3d 501 (N.Y. Ct. App. 2017).

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Opinion

*501 Order, Supreme Court, Bronx County (Lizbeth González, J.), entered December 23, 2016, which, upon renewal, reversed a prior order, entered on default, granting defendants’ motion to change venue from Bronx County to Suffolk County, and denied defendants’ motion, unanimously affirmed, without costs.

The motion court properly exercised its discretion under CPLR 2001 in granting plaintiff’s motion to renew, as the record shows that on the prior motion, plaintiff’s opposition was not considered due to counsel’s inadvertent failure to comply with the court’s part rules. Counsel’s error did not cause significant prejudice, and plaintiff has been ordered to reimburse defendants for any resulting costs and fees incurred (see CPLR 2001; DePompo-Seff v Genovese Drug Stores, Inc., 13 AD3d 109 [1st Dept 2004]).

Venue was properly laid in Bronx County, as plaintiff resided there when the complaint was filed (see CPLR 503 [a]; Cardona v Aggressive Heating, 180 AD2d 572, 573 [1st Dept 1992]). Defendants failed to show that a change of venue was warranted, as they failed to identify any material witnesses residing in Suffolk County, explain how they will be inconvenienced without a change of venue, or disclose the substance and materiality of their testimony (see Jacobs v Banks Shapiro Get-tinger Waldinger & Brennan, LLP, 9 AD3d 299, 299-300 [1st Dept 2004]).

Concur — Tom, J.P., Renwick, Andrias, Singh and Moulton, JJ.

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*501 Order, Supreme Court, Bronx County (Lizbeth González, J.), entered December 23, 2016, which, upon renewal, reversed a prior order, entered on default, granting defendants’ motion to change venue from Bronx County to Suffolk County, and denied defendants’ motion, unanimously affirmed, without costs.

The motion court properly exercised its discretion under CPLR 2001 in granting plaintiff’s motion to renew, as the record shows that on the prior motion, plaintiff’s opposition was not considered due to counsel’s inadvertent failure to comply with the court’s part rules. Counsel’s error did not cause significant prejudice, and plaintiff has been ordered to reimburse defendants for any resulting costs and fees incurred (see CPLR 2001; DePompo-Seff v Genovese Drug Stores, Inc., 13 AD3d 109 [1st Dept 2004]).

Venue was properly laid in Bronx County, as plaintiff resided there when the complaint was filed (see CPLR 503 [a]; Cardona v Aggressive Heating, 180 AD2d 572, 573 [1st Dept 1992]). Defendants failed to show that a change of venue was warranted, as they failed to identify any material witnesses residing in Suffolk County, explain how they will be inconvenienced without a change of venue, or disclose the substance and materiality of their testimony (see Jacobs v Banks Shapiro Get-tinger Waldinger & Brennan, LLP, 9 AD3d 299, 299-300 [1st Dept 2004]).

Concur — Tom, J.P., Renwick, Andrias, Singh and Moulton, JJ.

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Bluebook (online)

2017 NY Slip Op 7187, 154 A.D.3d 500, 61 N.Y.S.3d 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/narvaez-v-sammartino-nyappdiv-2017.

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