WILKERSON v. 134 KITTY CORP (2008)

In an action to recover damages for personal injuries, the defendants 134 Kitty's Corp., 134 Kitty's Corp., d/b/a Freddy's, 134 Kitty's Corp., d/b/a Slammer's, and Efren Rivera appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated July 19, 2006, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against them or, alternatively, for a change of venue of this action from Kings County to Otsego County.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the appellants' motion which was for summary judgment dismissing the plaintiff's cause of action alleging assault insofar as asserted against them, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed insofar as appealed from, with costs payable by the plaintiff.

 The cause of action seeking to recover damages for assault is asserted against all the defendants.   Since the underlying events occurred on September 28, 2002, and the action was not commenced by filing until July 5, 2005, the assault cause of action is untimely under the applicable one-year statute of limitations (see CPLR 215[3] ), and the Supreme Court should have granted that branch of the appellants' motion which was for summary judgment dismissing that cause of action insofar as asserted against them.

However, as to the negligence cause of action including, inter alia, the issue of piercing the corporate veil as to the defendant Efren Rivera, the appellants failed to establish their prima facie showing of entitlement to summary judgment (see Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81, 760 N.Y.S.2d 397, 790 N.E.2d 772;  Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Allstate Ins. Co. v. Persampire, 45 A.D.3d 706, 846 N.Y.S.2d 288).

 The Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was to change the venue of the action from Kings County to Otsego County based upon “the convenience of material witnesses and the ends of justice” (CPLR 510[3] ).   The appellants failed to submit sufficient evidence of the criteria necessary to demonstrate entitlement to that relief (see O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 172-173, 622 N.Y.S.2d 284;  Frankel v. Stavsky, 40 A.D.3d 918, 919, 838 N.Y.S.2d 90;  Shindler v. Warf, 24 A.D.3d 429, 430, 805 N.Y.S.2d 428). That branch of the appellants' motion which was to change the venue of the action as a matter of right was properly denied, as it was untimely (see CPLR 511 [b];  Castillo v. Metropolitan Laundry Machinery Co., Inc., 299 A.D.2d 247, 750 N.Y.S.2d 52).

The appellants' remaining contention is without merit.