HOOGLAND v. New Amera Transit, Defendant. (2005)

Supreme Court, Appellate Division, First Department, New York.

Cynthia HOOGLAND, as Administratrix Ad Prosequendum of the Estate of Peter Malkin, deceased, et al., Plaintiffs-Appellants, v. TRANSPORT EXPRESSWAY, INC., et al., Defendants-Respondents, New Amera Transit, Defendant.
[And a Third-Party Action]. Denise Malkin, Plaintiff-Appellant, v. Transport Expressway, Inc., et al., Defendants-Respondents, New Amera Transit, Defendant.

Decided: December 08, 2005

ANDRIAS, J.P., SULLIVAN, WILLIAMS, GONZALEZ, CATTERSON, JJ.

Kelner and Kelner, New York (Gail S. Kelner of counsel), for Cynthia Hoogland, appellant. Rodney S. Lapidus, Baldwin, for Denise Malkin, appellant. Slutsky, McMorris & Meehan, LLP, New York (William A. Meehan of counsel), for Transport Expressway, Inc., 3145221 Canada, Inc. and Sebastien Tremblay, respondents. Geraghty Law Firm, Hackensack, NJ (J. Patrick Geraghty of counsel), for The Port Authority of New York and New Jersey, Port Newark Container Terminal, L.L.C., P & O Nedlloyd Limited and P & O Ports North America, Inc., respondents. Strongin Rothman & Abrams, LLP, New York (Howard F. Strongin of counsel), for Nippon Yusen Kabushiki Kaisha and NYK Line (North America) Inc., respondents.

Orders, Supreme Court, New York County (Milton A. Tingling, J.), both entered August 19, 2004, which, in each action, granted the motion of defendants Nippon Yusen Kabushiki Kaishi and NYK Line (North America) Inc. to change venue from New York to Orange County, unanimously affirmed, without costs.

The motion court correctly granted defendants' motions to change venue since defendants made the requisite showing that retention of the actions in New York County would inconvenience nonparty material witnesses (see CPLR 510(3); Rodriguez-Lebron v. Sunoco, Inc., 18 A.D.3d 275, 276, 795 N.Y.S.2d 26 [2005] ). Defendants submitted the affidavits of a New York State Trooper, the Cornwall Fire Department Chief and two paramedics who affirmed that they had responded to the scene of the multi-vehicle accident in Orange County, New York and prepared reports concerning their actions at the scene. These nonparty witnesses also indicated that they would be willing to testify in these cases, but that they would be inconvenienced by having to take a day off from their public service jobs to travel to New York County to testify. Inasmuch as the testimony of the Trooper and the Fire Chief will bear on liability, and the paramedics have testimony respecting the injuries sustained in the accident, these witnesses' testimony is material and it was proper for the court to consider their convenience (see Kennedy v. C.F. Galleria at White Plains, L.P., 2 A.D.3d 222, 223, 769 N.Y.S.2d 526 [2003] ).

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