Root v. Brotmann

41 A.D.3d 247, 836 N.Y.S.2d 874

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard E Braun, J.), entered October 25, 2006, which granted defendant’s cross motion to change venue from New York to Westchester County and awarded defendant costs, unanimously reversed, on the law, with costs, the motion denied and the award of costs vacated.

Defendant’s moving papers, seeking a change of venue pursuant to CPLR 510 (3), were deficient in virtually every relevant respect. Among other defects, the moving papers failed to set forth whether the named witnesses would be willing to testify, the nature and materiality of the witnesses’ anticipated testimony, and the manner in which they would be inconvenienced by a trial in New York County (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]). Although defendant attempted to cure certain of these deficiencies in his reply papers, that attempt was improper and should have been disregarded (see Job v Subaru Leasing Corp., 30 AD3d 159 [2006]; Barbot v Nagabushana, 235 AD2d 289 [1997]), and, in any event, substantively inadequate. Concur—Marlow, J.P., Williams, Gonzalez, Catterson and McGuire, JJ.