Reid v. Brookhaven Memorial Hospital Center

204 A.D.2d 123, 611 N.Y.S.2d 542, 1994 N.Y. App. Div. LEXIS 5122

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1994
• Status: Published

Opinion

Order, Supreme Court, New York County (Stanley Sklar, J.), entered December 1, 1992, which granted defendants’ motion to confirm the report of the Special Referee recommending a change of venue from New York County to Suffolk County, unanimously affirmed, with costs.

A hearing on the issue of plaintiffs’ residence was properly directed in view of the internal inconsistencies in their papers indicating a residence in three different counties (see, Cerniglia v Combes, 157 AD2d 499). At the hearing, which plaintiffs did not attend, the Special Referee correctly held that the verification of the complaint by plaintiffs’ attorney stating that plaintiffs do not reside in New York County where the attorney maintains his office, left uncontradicted, was sufficient to satisfy defendants’ burden of coming forward with proof of plaintiffs’ residence. Nor did the IAS Court abuse its discretion in refusing to excuse plaintiffs’ failure to appear at the hearing, there being sufficient in the record to find, as the IAS Court did, that plaintiffs knew of the scheduling of the hearing. In any event, even if New York County were a proper venue, a change to Suffolk County, where the cause of action arose, the witnesses and defendants all reside and work, and plaintiffs maintain a second residence, would be justified in furtherance of the ends of justice (CPLR 510 [3]; see, Tricarico v Cerasuolo, 199 AD2d 142). Concur—Rosenberger, J. P., Kupferman, Asch, Nardelli and Williams, JJ.