Obas v. Grappell

43 A.D.3d 431, 841 N.Y.S.2d 595

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 14, 2007
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Queens County (Weiss, J.), entered August 7, 2006, which denied their motion pursuant to CPLR 511 to change venue from Queens County to Nassau County.

Ordered that the order is affirmed, with costs.

A demand to change venue based on the designation of an improper county (see CPLR 503 [a]; 510 [1]) must be “served with the answer or before the answer is served” (CPLR 511 [a]). Here, since the defendants failed to serve a timely demand for a change of venue to Nassau County, and failed to make a motion for that relief within the statutory 15-day period (see CPLR 511 [b]), they were not entitled as of right to a change of venue to Nassau County (see Joyner-Pack v Sykes, 30 AD3d 469 [2006]; Harleysville Ins. Co. v Ermar Painting & Contr., Inc., 8 [2004]; Runde v Cross County Shopping Mall, 268 AD2d 577 [2000]). Thus, their motion “became one addressed to the court’s discretion” (Callanan Indus, v Sovereign Constr. Co., 44 AD2d 292, 295 [1974]; see Pittman v Maher, 202 AD2d 172, 175 [1994]).. Moreover, the defendants failed to move promptly for a change of venue even after ascertaining the plaintiffs alleged true residence (see Acosta v Hadjigavriel, 6 AD3d 636, 637 [2004]; Runcie v Cross County Shopping Mall, supra), and the record does not establish that the plaintiff misled the defendants or sought to manipulate the venue rules (see Joyner-Pack v Sykes, supra; Koschak v Cates Constr. Corp., 225 AD2d 315, 316 [1996]; Pittman v Maher, supra at 174). Under the circumstances, the Supreme Court providently exercised its discretion in denying the motion. Rivera, J.E, Spolzino, Fisher, Lifson and Dickerson, JJ., concur.