Simon v. Usher

73 A.D.3d 415, 899 N.Y.S.2d 601

Opinion

Order, Supreme Court, Bronx County (Maryann Brigantti-Hughes, J.), entered October 27, 2009, which, in a medical malpractice action, granted the motion of defendants Usher, Chait, Hartsdale Medical Group, EC. and White Flains Hospital Center to change venue from Bronx County to Westchester County, unanimously reversed, on the law, without costs, and the motion denied.

Although the moving defendants made a timely demand for a change of venue, their motion for such relief was untimely. A defendant “may move to change the place of trial within fifteen days after service of the demand,” unless the plaintiff consents to the change of venue within five days of service of the demand (CFLR 511 [b]). Here, the motion for a change of venue, made 20 days after service of the demand, must be rejected as untimely (see Singh v Becher, 249 AD2d 154 [1998]). Contrary to moving defendants’ claim, they were not entitled to the five-day extension in CFLR 2103 (b) (2) for time periods measured from service by mail (see Thompson v Cuadrado, 277 AD2d 151 [2000]). Furthermore, the failure of the remaining defendants to serve a demand to change venue with or prior to their answer was fatal to their request to change venue (see Kurfis v Shore Towers Condominium, 48 AD3d 300 [2008]; CFLR 511 [a]). Concur—Gonzalez, P.J., Tom, Renwick, DeGrasse and AbdusSalaam, JJ.