BAEZ v. MARCUS (2009)

In an action to recover damages for medical malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated January 24, 2008, as, in effect, upon granting reargument, adhered to its original determination in an order of the same court dated September 5, 2007, denying that branch of their cross motion which was pursuant to CPLR 511 to change venue from Kings County to New York County.

ORDERED that the order is affirmed insofar as appealed from, with costs.

As the Supreme Court reviewed the merits of the defendants' arguments on their motion for leave to reargue, the court, in effect, granted reargument and adhered to its original determination. Therefore, the order dated January 24, 2008, made upon reargument, is appealable (see Matter of Mattie M. v. Administration for Children's Servs., 48 A.D.3d 392, 393, 851 N.Y.S.2d 236;  McNeil v. Dixon, 9 A.D.3d 481, 482, 780 N.Y.S.2d 635).

 A demand to change venue based on the designation of an improper county (see CPLR 503[a], 510[1] ) must be “served with the answer or before the answer is served” (CPLR 511[a] ).   Here, since the defendants failed to serve a timely demand for a change of venue to New York County, and failed to make a motion for that relief within the statutory 15-day period (see CPLR 511[b] ), they were not entitled as of right to a change of venue to New York County (see Obas v. Grappell, 43 A.D.3d 431, 841 N.Y.S.2d 595;   Joyner-Pack v. Sykes, 30 A.D.3d 469, 817 N.Y.S.2d 342;  Harleysville Ins. Co. v. Ermar Painting & Contr., Inc., 8 A.D.3d 229, 230, 777 N.Y.S.2d 661).   Thus, their motion “became one addressed to the court's discretion” (Callanan Indus. v. Sovereign Constr. Co., 44 A.D.2d 292, 295, 354 N.Y.S.2d 486;  see Obas v. Grappell, 43 A.D.3d at 432, 841 N.Y.S.2d 595;  Pittman v. Maher, 202 A.D.2d 172, 175, 608 N.Y.S.2d 199).   Upon reargument, the Supreme Court providently exercised its discretion since the defendants failed to move promptly for a change of venue after ascertaining the plaintiff's alleged true residence (see Acosta v. Hadjigavriel, 6 A.D.3d 636, 775 N.Y.S.2d 179;   Runcie v. Cross County Shopping Mall, 268 A.D.2d 577, 702 N.Y.S.2d 612).   In any event, the defendants failed to meet their initial burden of demonstrating that none of the parties resided in Kings County at the time of the commencement of the action (see Galan v. Delacruz, 4 A.D.3d 449, 771 N.Y.S.2d 696;  Bailon v. Avis Rent A Car, Inc., 270 A.D.2d 439, 705 N.Y.S.2d 607;  Llorca v. Manzo, 254 A.D.2d 396, 397, 679 N.Y.S.2d 83).