COHEN v. (And a Third-Party Action.) (2004)

Appeal from an order of the Supreme Court (Clemente, J.), entered April 11, 2003 in Sullivan County, which, upon reargument, denied defendants' motion to change venue.

This action stems from a contract for private investigative services between plaintiff and defendants.   Although Supreme Court initially granted a defense motion to change venue from Sullivan County to Rockland County, it thereafter granted plaintiff's motion to reargue and vacated its prior order.   Defendants appeal.

 None of the arguments advanced by defendants persuades this Court that Supreme Court's subsequent decision to maintain venue in Sullivan County should be disturbed.   Defendants failed to establish that they would be unable to obtain a fair trial in Sullivan County simply because plaintiff's father, third-party defendant, Ira Cohen, was the county attorney for Sullivan County and because his wife, plaintiff's stepmother, served as a law clerk to a Family Court Judge in that county.   As aptly noted nearly 65 years ago, “the mere fact that a party to an action is of some prominence or holds an official position in the county does not justify an inference that an impartial trial cannot be held in that county” (Ingo v. Casey, 175 Misc. 805, 807, 25 N.Y.S.2d 384 [1940], affd. 260 App.Div. 1024, 25 N.Y.S.2d 413 [1940];  see Bult v. Kornspan, 37 A.D.2d 672, 322 N.Y.S.2d 366 [1971];  Fishman v. Fishman, 20 A.D.2d 941, 248 N.Y.S.2d 916 [1964], lvs. dismissed 15 N.Y.2d 482, 621, 255 N.Y.S.2d 1025, 665, 203 N.E.2d 800, 918 [1964] ).

 Here, defendants' assertions that the status of both Cohen and his wife would preclude an impartial trial in Sullivan County were wholly conclusory (see CPLR 510[2];  Handler v. 1050 Tenants Corp., 295 A.D.2d 238, 240, 744 N.Y.S.2d 161 [2002];  Field v. Schultz, 288 A.D.2d 177, 732 N.Y.S.2d 368 [2001];  Locker v. 670 Apts. Corp., 232 A.D.2d 176, 647 N.Y.S.2d 519 [1996]  ).¹  Notably, mere belief, suspicion or feeling are insufficient grounds to grant a motion to change venue under CPLR 510(2) (see Fishman v. Fishman, supra;  Noonan v. Luther, 128 App.Div. 673, 674, 112 N.Y.S. 898 [1908] ).   As defendants failed to come forward with facts demonstrating a “strong possibility” that their belief was well founded and that an impartial trial of the action could not be obtained in Sullivan County (De Bolt v. Barbosa, 280 A.D.2d 821, 824, 720 N.Y.S.2d 283 [2001] ), Supreme Court did not abuse its discretion in ultimately denying the motion (see Field v. Schultz, supra;  Locker v. 670 Apts. Corp., supra;  Lubitz v. Mehlman, 166 A.D.2d 212, 564 N.Y.S.2d 91 [1990];  Krupka v. County of Westchester, 160 A.D.2d 681, 681-682, 553 N.Y.S.2d 777 [1990];  Midonick v. Peppertree Hill Dev. Corp., 49 A.D.2d 721, 721-722, 373 N.Y.S.2d 2 [1975];   Fishman v. Fishman, supra ).

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   Contrary to defendants' assertions, neither Cohen's status as county attorney or his nonparty wife's status as law clerk is comparable to the parties' statuses in Amann v. Caccese, 223 A.D.2d 663, 637 N.Y.S.2d 217 [1996] [the plaintiff was a daughter of a Court of Claims Judge/Acting Supreme Court Justice], Rothwax v. Spicehandler, 161 A.D.2d 184, 554 N.Y.S.2d 882 [1990] [the plaintiff was a Supreme Court Justice], Milazzo v. Long Is. Light. Co., 106 A.D.2d 495, 483 N.Y.S.2d 33 [1984] [the plaintiff was a law secretary to two Supreme Court Justices] or Burstein v. Greene, 61 A.D.2d 827, 402 N.Y.S.2d 227 [1978] [the plaintiff was the spouse of a Supreme Court Justice] such that venue should have been transferred under the strength of these cases.

CARPINELLO, J.

CARDONA, P.J., MERCURE and ROSE, JJ., concur.