JOSEPH v. FENSTERMAN (2023)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Kevin R. Bryant, J.), entered September 30, 2022 in Ulster County, which denied defendants’ motion to change venue.

In 2014, plaintiffs commenced this action against defendants in Ulster County.  Defendants joined issue and also commenced a special proceeding in Nassau County.  Shortly thereafter, defendants moved in Nassau County to transfer the action from Ulster County to Nassau County.  In a 2015 order, Supreme Court (Adams, J.) granted defendants’ motion.  The Second Department, however, reversed the 2015 order, holding that defendants’ motion to change venue was not made in the proper county (see Fensterman v. Joseph, 162 A.D.3d 855, 856–857, 80 N.Y.S.3d 1 [2d Dept. 2018]).  In so doing, the Second Department also permitted defendants to renew their motion in Ulster County (see id. at 857, 80 N.Y.S.3d 1).  Defendants then moved in Ulster County to change venue of plaintiffs’ action to Nassau County.  Supreme Court (Bryant, J.) denied the motion, prompting this appeal by defendants.

As the movants seeking relief under CPLR 510(3), defendants needed “to provide the [court] with the names and addresses of the nonparty witnesses that had expressed their willingness to testify, the substance and relevance of their proposed testimony, and how they would be unduly inconvenienced by appearing for trial in [Ulster] County” (Liere v. State of New York, 123 A.D.3d 1323, 1324, 999 N.Y.S.2d 581 [3d Dept. 2014];  see State of New York v. Konikov, 182 A.D.3d 750, 754–755, 122 N.Y.S.3d 719 [3d Dept. 2020], lv denied 36 N.Y.3d 906, 2021 WL 505606 [2021]).  Although the nonparty witnesses noted the distance and travel time from the Nassau County area to Ulster County in arguing for a venue change, they failed to specify how they would be unduly inconvenienced by such distance and travel (see Hyman v. Schwartz, 114 A.D.3d 1110, 1112, 981 N.Y.S.2d 468 [3d Dept. 2014], lv dismissed 24 N.Y.3d 930, 993 N.Y.S.2d 541, 17 N.E.3d 1137 [2014];  Cavazzini v. Viennas, 82 A.D.3d 1343, 1345, 918 N.Y.S.2d 633 [3d Dept. 2011];  State of New York v. Quintal, Inc., 79 A.D.3d 1357, 1358, 915 N.Y.S.2d 168 [3d Dept. 2010]).  Furthermore, these nonparty witnesses only stated in a conclusory fashion the substance of their proposed trial testimony.  Defendants’ evidentiary proffer also failed to show that a change in venue to Nassau County would promote the ends of justice (see United Community Ins. Co. v. Triboro Signal Sta., Inc., 160 A.D.2d 1206, 1207, 555 N.Y.S.2d 210 [3d Dept. 1990]).  In view of the foregoing, Supreme Court did not abuse its discretion in denying defendants’ motion (see Liere v. State of New York, 123 A.D.3d at 1324, 999 N.Y.S.2d 581;  Frontier Ins. Co. in Rehabilitation v. Big Apple Roofing Co., Inc., 50 A.D.3d 1239, 1239–1240, 855 N.Y.S.2d 702 [3d Dept. 2008];  Stoyer v. Feeney, 165 A.D.2d 946, 946, 561 N.Y.S.2d 109 [3d Dept. 1990]).

ORDERED that the order is affirmed, with costs.

Aarons, J.

Clark, J.P., Pritzker, Reynolds Fitzgerald and McShan, JJ., concur.