25 27 CORP v. MORMILE (2007)

In an action, inter alia, to recover damages for conversion, unjust enrichment, and breach of fiduciary duty, the defendants appeal from an order of the Supreme Court, Suffolk County (Molia, J.), dated October 31, 2006, which denied their motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to Richmond County.

ORDERED that the order is affirmed, with costs.

 The defendants' motion pursuant to CPLR 510(3) to change the venue of the action, which was based on the convenience of material witnesses, did not require that the defendants serve a demand to change venue with the answer or before serving the answer (see Byron v. Spektor, 266 A.D.2d 253, 698 N.Y.S.2d 290;  Montoya v. Brown, 233 A.D.2d 374, 650 N.Y.S.2d 582;  Saal Prods. Sales, Inc. v. Schatz Mfg. Co., 216 A.D. 544, 545-546, 215 N.Y.S. 530;  cf. CPLR 511[a], [b] ).

 Nonetheless, the defendants' motion to change venue was properly denied.   The convenience of the son of the defendant Andrea Mormile must be excluded from consideration in determining the motion (see Cumberbatch v. Gatehouse Motel & Rest., 265 A.D.2d 370, 697 N.Y.S.2d 84;  O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 173, 622 N.Y.S.2d 284;  cf. Lundgren v. Lovejoy, Wasson, Lundgren & Ashton, 82 A.D.2d 912, 440 N.Y.S.2d 692).   Furthermore, the affidavits of Robert Rampulla and Al Risi were insufficient to establish that the defendants were entitled to a change of venue pursuant to CPLR 510(3).   Those witnesses failed to disclose the nature and materiality of their anticipated testimony (see Shindler v. Warf, 24 A.D.3d 429, 429-430, 805 N.Y.S.2d 428;  Fernandes v. Lawrence, 290 A.D.2d 412, 736 N.Y.S.2d 603;  Romero v. Mitchelltown Apts., 281 A.D.2d 612, 722 N.Y.S.2d 183).   Those witnesses do not claim to know how the defendants disbursed the money after the closings, which goes to the heart of the allegations in this action.   Therefore, the defendants failed to demonstrate that they were entitled to a change of venue for the convenience of material witnesses (see Fernandes v. Lawrence, 290 A.D.2d at 412, 736 N.Y.S.2d 603;  O'Brien v. Vassar Bros. Hosp., 207 A.D.2d at 173, 622 N.Y.S.2d 284).