DAVIS v. FIRMAN PLLC (2008)

 Plaintiff appeals and defendants cross-appeal from an order granting the motion of plaintiff for leave to reargue his opposition to the respective motion and cross motion of defendants for an order changing the venue of this action from Erie County to Cortland County.   Upon reargument, Supreme Court adhered to its prior decision granting defendants' respective motion and cross motion.   Addressing first defendants' cross appeals, we conclude that the court properly granted plaintiff's motion for leave to reargue inasmuch as the court “mistakenly arrived at its earlier decision” changing the venue of the action (Matter of Williams v. Board of Educ. of City School Dist. of City of N.Y., 24 A.D.3d 458, 459, 805 N.Y.S.2d 126;  see CPLR 2221[d][2];  Custom Topsoil, Inc. v. City of Buffalo, 12 A.D.3d 1162, 1164, 785 N.Y.S.2d 634;  Ebasco Constructors v. A.M.S. Constr. Co., 195 A.D.2d 439, 440, 599 N.Y.S.2d 866).

 We conclude with respect to plaintiff's appeal that the court, upon reargument, erred in adhering to its prior decision, and we therefore modify the order accordingly.   Parties “ ‘moving for a change of venue pursuant to CPLR 510(3) [have] 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 A.D.3d 899, 789 N.Y.S.2d 779, quoting Heinemann v. Grunfeld, 224 A.D.2d 204, 637 N.Y.S.2d 141).   In support of the motion and cross motion, defendants submitted the affidavits of four prospective witnesses who stated that they would be inconvenienced if they had to travel to Erie County.   Two of the prospective witnesses are employed at defendant Cortland Memorial Hospital, however, and thus their convenience “carries little if any weight” (Said v. Strong Mem. Hosp., 255 A.D.2d 953, 954, 680 N.Y.S.2d 785).   The affidavits of the remaining two prospective witnesses, paramedics who gave medical assistance to plaintiff, failed to include the residence addresses of the witnesses (see Montero v. Elrac, Inc., 300 A.D.2d 9, 10, 751 N.Y.S.2d 432), and “the brief and vague descriptions of the [prospective] witnesses' expected testimony are insufficient to assess the materiality of that testimony” (Rochester Drug Co-op., Inc., 15 A.D.3d 899, 789 N.Y.S.2d 779;  see also Roth v. Meyer, 248 A.D.2d 1001, 670 N.Y.S.2d 149).  “ ‘[A]lthough the facts of this case might support a change of venue if [all of] the procedural requirements were satisfied, the facial deficiency of the motion [and cross motion] papers requires that the motion [and cross motion] be denied’ ” (Rochester Drug Co-op., Inc., 15 A.D.3d 899, 789 N.Y.S.2d 779;  see generally Frangos v. Town of Niagara, 307 A.D.2d 727, 762 N.Y.S.2d 330;  Pillittere v. Ted & Ann Tours, 244 A.D.2d 1006, 668 N.Y.S.2d 969).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion and cross motion for a change of venue and as modified the order is affirmed without costs.

MEMORANDUM: