OBAS v. GRAPPELL (2007)

In an action to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Queens County (Weiss, J.), entered August 7, 2006, which denied their motion pursuant to CPLR 511 to change venue from Queens County to Nassau County.

ORDERED that the order is affirmed, with costs.

 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 Nassau 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 Nassau County (see 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;   Runcie v. Cross County Shopping Mall, 268 A.D.2d 577, 702 N.Y.S.2d 612).   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 Pittman v. Maher, 202 A.D.2d 172, 175, 608 N.Y.S.2d 199).   Moreover, the defendants failed to move promptly for a change of venue even after ascertaining the plaintiff's alleged true residence (see Acosta v. Hadjigavriel, 6 A.D.3d 636, 637, 775 N.Y.S.2d 179;  Runcie v. Cross County Shopping Mall, supra ), and the record does not establish that the plaintiff misled the defendants or sought to manipulate the venue rules (see Joyner-Pack v. Sykes, supra; Koschak v. Gates Constr. Corp., 225 A.D.2d 315, 316, 639 N.Y.S.2d 10;  Pittman v. Maher, supra at 174, 608 N.Y.S.2d 199).   Under the circumstances, the Supreme Court providently exercised its discretion in denying the motion.