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Schapiro Reich, Esqs. v. Fuchsberg

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 26, 1991
172 A.D.2d 1080 (N.Y. App. Div. 1991)

Opinion

April 26, 1991

Appeal from the Supreme Court, Suffolk County, Jones, J.

Present — Callahan, J.P., Denman, Green, Balio and Davis, JJ.


Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court improvidently exercised its discretion in granting defendant's motion seeking a change of venue pursuant to CPLR 510 (3) upon the ground that "the convenience of material witnesses and the ends of justice will be promoted by the change". The affidavits offered by defendant in support of his motion were legally insufficient to support the change of venue from Suffolk County to Westchester County. There is no showing that venue in Suffolk County would cause inconvenience to nonparty material witnesses and the convenience of the parties is not relevant unless the inconvenience relates to a party's health, a situation not argued here (see, D'Argenio v. Monroe Radiological Assocs., 124 A.D.2d 541, 542; Messinger v Festa, 94 A.D.2d 792). Additionally, the attorney's affirmation suggesting that there is less calendar congestion in Westchester County is equivocal and, under the circumstances presented here, is not a basis for granting a change of venue pursuant to CPLR 510 (3) (see, A.M.I. Intl. v. Gary Pool Sales Serv., 94 A.D.2d 890, 891; see also, 7A Carmody-Wait 2d, N.Y. Prac § 48:71, at 189).

Moreover, defendant is not entitled to an order changing venue as of right because Suffolk County is a proper county (see, CPLR 503 [d]; 510 [1]).

Accordingly, the order granting a change of venue is reversed and defendant's motion denied. Plaintiff's cross motion is not properly before us.


Summaries of

Schapiro Reich, Esqs. v. Fuchsberg

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 26, 1991
172 A.D.2d 1080 (N.Y. App. Div. 1991)
Case details for

Schapiro Reich, Esqs. v. Fuchsberg

Case Details

Full title:SCHAPIRO REICH, ESQS., Appellant, v. JACOB D. FUCHSBERG, Respondent

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 26, 1991

Citations

172 A.D.2d 1080 (N.Y. App. Div. 1991)

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