

M.I. v Trinity-Pawling School (2015 NY Slip Op 00852)





M.I. v Trinity-Pawling School


2015 NY Slip Op 00852


Decided on February 4, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 4, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

PETER B. SKELOS, J.P.
SANDRA L. SGROI
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.


2014-05539
 (Index No. 62785/13)

[*1]M. I. (Anonymous), etc., et al., respondents, 
vTrinity- Pawling School, et al., appellants.


Biedermann Hoenig Semprevivo, New York, N.Y. (Ross E. Pitcoff and Elaine N. Chou of counsel), for appellants.
Franzetti Law Offices, P.C., New York, N.Y. (James J. Franzetti of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated May 6, 2014, which denied their motion for a change of venue from Suffolk County to Dutchess County.
ORDERED that the order is affirmed, with costs.
Upon a motion by a party, a trial court may transfer venue where "the convenience of material witnesses and the ends of justice will be promoted by the change" (CPLR 510[3]). Motions to transfer venue under CPLR 510(3) are addressed to the sound discretion of the court, and absent an improvident exercise of discretion, the order will not be disturbed on appeal (see Morris v Halik, 172 AD2d 502).
"The party moving for a change of venue pursuant to CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses would be better served by the change" (Rochester Drug Co-Op., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899, 909; see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909). In doing so, the moving party must set forth: (1) the names, addresses, and occupations of material witnesses, (2) the facts to which these witnesses will testify at trial, (3) a showing that those witnesses are willing to testify, and (4) a showing that those witnesses would be inconvenienced if the venue of the action was not changed (see Lafferty v Eklecco, LLC, 34 AD3d 754, 755; O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173). As the movants, the defendants failed to meet their burden. Accordingly, the Supreme Court providently exercised its discretion in denying the defendants' motion for a change of venue from Suffolk County to Dutchess County.
SKELOS, J.P., SGROI, MALTESE and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


