CARROZZA v. [And A Third Party Action]. (2002)

Order, Supreme Court, New York County (Walter Tolub, J.), entered January 5, 2001, which granted defendants' motion for a change of venue from New York County to Westchester County, unanimously reversed, on the law and the facts, with costs, and the motion denied.

In support of their motion to change venue for the promotion of the convenience of material witnesses (CPLR 510[3] ), defendants duly provided their proposed witnesses' names and addresses (see, Leopold v. Goldstein, 283 A.D.2d 319, 320, 726 N.Y.S.2d 15).   However, “[t]o establish inconvenience of witnesses it is necessary at least to contact them” (MacRobbie v. Olivio, 200 A.D.2d 373, 374, 606 N.Y.S.2d 196).   Defendants failed to demonstrate that they contacted any of the witnesses they identified.   Counsel asserted in an affirmation that the witnesses were willing to testify but did not say that counsel (or anyone on defendants' behalf) had contacted them to ascertain their willingness to testify or the materiality of their testimony (see, Leopold, supra ).   At the same time, counsel stated that, “[t]o the extent the witnesses are not willing to testify, subpoenas would be issued.”

Plaintiffs' counsel attempted to contact the nine witnesses identified by defendants.   Two of these witnesses told counsel's office they had not seen the accident and had not been contacted by anyone else regarding the case.   Moreover, one of them said he would be willing to testify in New York County and swore an affidavit to that effect.   The third witness died six months before defendants made their motion.   The remaining witnesses could not be reached at the addresses provided by defendants.