ROCHESTER DRUG CO OPERATIVE INC v. MARCOTT PHARMACY NORTH CORP (2005)

Supreme Court erred in granting that part of the motion of third-party defendant seeking a change of venue to Westchester County pursuant to CPLR 510(3).  “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” (Heinemann v. Grunfeld, 224 A.D.2d 204, 204, 637 N.Y.S.2d 141).   Third-party defendant failed to meet that burden.   It identified four nonparty witnesses, but failed to provide their residence addresses (see Montero v. Elrac, Inc., 300 A.D.2d 9, 10, 751 N.Y.S.2d 432;  Stavredes v. United Skates of Am., 87 A.D.2d 502, 447 N.Y.S.2d 478), establish that any of the witnesses had been contacted (see Montero, 300 A.D.2d at 9-10, 751 N.Y.S.2d 432;  Carrozza v. Galleria Mall at White Plains, 292 A.D.2d 279, 739 N.Y.S.2d 153) or indicate that they were available and willing to testify (see Heinemann, 224 A.D.2d at 204, 637 N.Y.S.2d 141).   Further, the brief and vague descriptions of the witnesses' expected testimony are insufficient to assess the materiality of that testimony (see People ex rel. Higgins v. Leier, 164 A.D.2d 492, 495, 564 N.Y.S.2d 539;  Barney v. Rochester Inst. of Tech., 105 A.D.2d 516, 481 N.Y.S.2d 465).   Thus, “although the facts of this case might support a change of venue if the procedural requirements were satisfied, the facial deficiency of the motion papers requires that the motion be denied” (Montero, 300 A.D.2d at 10, 751 N.Y.S.2d 432).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law with costs and the motion is denied in its entirety.

MEMORANDUM: