BARBOT v. NAGABUSHANA

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Supreme Court, Appellate Division, First Department, New York.

Carlos M. BARBOT, Plaintiff-Respondent, v. Dr. G.V. NAGABUSHANA, M.D., Defendant-Appellant.

Decided: January 21, 1997

Before MURPHY, P.J., and MILONAS, ROSENBERGER, ELLERIN and WILLIAMS, JJ. Ronald R. Benjamin, for Plaintiff-Respondent. Steven H. Mutz, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered July 8, 1996, which denied defendant's motion to change the venue of this medical malpractice action from Bronx County to Steuben County or Allegany County, unanimously affirmed, with costs.

The motion, insofar as it is based on the convenience of material witnesses, was properly denied because it was initially unsupported by the identification of any nonparty witness who would be inconvenienced by travel to the Bronx (see, Jansen v. Bernhang, 149 A.D.2d 468, 469, 539 N.Y.S.2d 963).   This initial deficiency was not saved by statements made in defendant's reply papers (see, Azzopardi v. American Blower Corp., 192 A.D.2d 453, 454, 596 N.Y.S.2d 404), which, in any event, identify as a witness who would be inconvenienced only an employee of his, whose convenience is given limited, if any, consideration (see, Jansen v. Bernhang, supra, at 470, 539 N.Y.S.2d 963).   Insofar as the motion was based on plaintiff's claimed nonresidence in Bronx County at the time the action was commenced, we agree with the IAS court that defendant's “evidence” in this regard failed to satisfy his burden of proof.   We have considered defendant's numerous related contentions and find them to be without merit.

MEMORANDUM DECISION.