Woodward v. Millbrook Ventures LLC

2017 NY Slip Op 2522, 148 A.D.3d 658, 49 N.Y.S.3d 303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 30, 2017
• Docket: 3586N 652052/15
• Status: Published

Opinion

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about December 10, 2016, which denied defendants’ motion to change venue from New York County to Dutchess County, unanimously affirmed, without costs.

Supreme Court properly concluded that defendants’ motion was untimely. Having consented to electronic filing, defendants were required to serve their papers electronically (Uniform Rules for Trial Cts [22 NYCRR] § 202.5-b [d] [1]), and indeed served their demand for change of venue, together with their answer, by e-filing the documents on July 14, 2015 (22 NYCRR 202.5-b [f| [2] [ii]). Having served their demand, defendants were required to bring their motion to change venue within 15 days, or by July 29, 2015 (CPLR 511). However, defendants did not bring their motion until July 31, 2015, rendering it untimely. That defendants also elected to serve their demand via United States mail did not extend the deadline for their motion under CPLR 2103 (b) (2). Because they consented to participate in Supreme Court’s e-filing system, defendants were bound by the applicable rules governing service.

It is further noted that defendants failed to show that a change of venue was warranted due to the inconvenience of material witnesses (CPLR 510 [3]), as their motion papers did not address the factors enumerated in Cardona v Aggressive Heating (180 AD2d 572 [1st Dept 1992]) and its progeny.

Concur — Tom, J.P., Moskowitz, Feinman, Gische and Kapnick, JJ.