MARKOWITZ v. MAKURA INC (2006)

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated February 17, 2005, as, upon renewal, adhered to a prior determination in an order dated February 26, 2004, denying its motion pursuant to CPLR 510(3) to transfer venue from Kings County to Albany County.

ORDERED that order dated February 17, 2005, is affirmed insofar as appealed from, with costs.

The submissions made by the defendant in support of renewal did not require a result different from that reached by the court in connection with the initial motion (see CPLR 2221[e][2];  R.R. Ragette, Inc. v. D'Incecco, 17 A.D.3d 436, 437, 793 N.Y.S.2d 141;  Velez v. Institute of Design & Constr., Inc., 11 A.D.3d 453, 454, 782 N.Y.S.2d 755).   Therefore, upon renewal, the Supreme Court properly adhered to its prior determination denying the defendant's motion to transfer venue.

The defendant's contention that a fair trial may not be had in Kings County in this personal injury action merely because the injured plaintiff is a public official elected by the voters of Kings County is without merit (cf. Silver v. Pataki, 179 Misc.2d 315, 322, 684 N.Y.S.2d 858, revd. 274 A.D.2d 57, 711 N.Y.S.2d 402, mod. 96 N.Y.2d 532, 730 N.Y.S.2d 482, 755 N.E.2d 842).   The Supreme Court correctly determined, moreover, that the defendant failed to make the requisite showing that either the convenience of witnesses or the interests of justice warranted the transfer of venue from Kings County to Albany County (see CPLR 510[3];  O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 172-173, 622 N.Y.S.2d 284;  see also Spicer v. Adelson, 24 A.D.3d 430, 804 N.Y.S.2d 688;  Shindler v. Warf, 24 A.D.3d 429, 429-430, 805 N.Y.S.2d 428;  Parks v. Costco Wholesale Membership, 19 A.D.3d 570, 570-571, 796 N.Y.S.2d 539;   Giaimo v. Hastings, 19 A.D.3d 365, 366, 795 N.Y.S.2d 909;  cf. Dwyer v. Nobody Beats the Wiz, Inc., 23 A.D.3d 334, 334-335, 805 N.Y.S.2d 87).   The convenience of two of the six witnesses identified by the defendant is not a relevant factor since they are officers or managers of the defendant corporation (see Mei Ying Wu v. Waldbaum, Inc., 284 A.D.2d 434, 435, 726 N.Y.S.2d 448;  McAdoo v. Levinson, 143 A.D.2d 819, 820, 533 N.Y.S.2d 145).   Three nonparty witnesses from the Albany area were identified by the defendant as having testimony arguably relevant to the slip-and-fall accident which underlies this action.   The inconvenience to them is not sufficient to outweigh the inconvenience to the plaintiffs' witnesses who would be required to travel to Albany if the trial were held there (cf. Heiss v. Moose, 16 A.D.3d 765, 766, 792 N.Y.S.2d 634).   Moreover, the remaining nonparty witness identified by the defendant resides in Buffalo, and the defendant did not demonstrate that it would be more inconvenient for him to travel to New York City than to Albany.