CHITAYAT v. The Huntington Public Library, et al., Defendants-Respondents. (2001)

Order, Supreme Court, New York County (Edward Lehner, J.), entered May 4, 2001, which granted defendant Town of Huntington's motion for a change of venue to Suffolk County, unanimously affirmed, without costs.

In this action involving an accident that took place in the Town of Huntington in Suffolk County, plaintiffs, residents of New York County, failed to overcome the statutory presumption that an action against a town “shall” be in the county in which the town is situated (CPLR 504[2] ) by carrying their burden of demonstrating “compelling countervailing circumstances” (Ruiz v. City of New York, 195 A.D.2d 327, 599 N.Y.S.2d 822).   Plaintiffs failed to name any witnesses in New York County who might be inconvenienced or describe their anticipated testimony (see, Emerick v. Metropolitan Transp. Auth., 272 A.D.2d 150, 708 N.Y.S.2d 612);  failed to substantiate their claim that the many doctor appointments necessary to treat the injured plaintiff's serious medical condition precludes her from going to Suffolk County;  and left unchallenged the assertion, based on testimony at plaintiffs' General Municipal Law § 50-e hearing, that the injured plaintiff had returned to her job in neighboring Nassau County and that plaintiffs drive there together.