Vincent Accardi, appellant, v. Trevor Kaufmann, respondent, et al., defendants. (2011)

Submitted-February 23, 2011

DECISION & ORDER

In an action to recover damages for personal injuries and injury to property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered July 2, 2010, which granted the motion of the defendant Trevor Kaufmann to change the venue of the action from Nassau County to Suffolk County pursuant to CPLR 510 and 511.

ORDERED that the order is affirmed, with costs.

A demand to change venue based on the designation of an improper county (see CPLR 510[1] ) “shall be served with the answer or before the answer is served” (CPLR 511[a];  see Thomas v. Guttikonda, 68 AD3d 853, 854).   Since the defendant Trevor Kaufmann did not serve his demand for a change of venue until after he served his answer, he was not entitled to change venue as of right (see Thomas v. Guttikonda, 68 AD3d at 854;  Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 816).   Thus, his motion became one addressed to the motion court's discretion (see Thomas v. Guttikonda, 68 AD3d at 854;  Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d at 816).

The Supreme Court providently exercised its discretion in granting Kaufmann's motion to change the venue from Nassau County to Suffolk County.   None of the parties resided in Nassau County at the time the action was commenced (see CPLR 503[a];  Peretzman v. Elias, 221 A.D.2d 192).   The plaintiff omitted from the summons the basis for placing the venue in Nassau County, indicating only that he was a resident of New York State (see CPLR 305[a];  Peretzman v. Elias, 221 A.D.2d at 192;  Philogene v. Fuller Auto Leasing, 167 A.D.2d 178).   Further, Kaufmann moved promptly to change venue after ascertaining the plaintiff's true residence (see O'Connor v Roman Catholic Diocese of Rockville Ctr., 231 A.D.2d 700;  Philogene v. Fuller Auto Leasing, 167 A.D.2d at 179).

SKELOS, J.P., COVELLO, ENG, CHAMBERS and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court