FORTUNE v. PALOMINO

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

Wendy FORTUNE, et al., Plaintiffs-Appellants, v. Fabian PALOMINO, Defendant-Respondent.

Decided: October 23, 2001

SULLIVAN, P.J., ANDRIAS, WALLACH, SAXE and MARLOW, JJ. Paul F. McAloon, for Plaintiffs-Appellants. Elizabeth M. Hecht, for Defendant-Respondent.

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered February 15, 2001, which denied plaintiffs' motion to reargue a prior order, same court and Justice, entered December 6, 2000, insofar as appealed granting defendant's cross motion to change venue from Bronx County to New York County, unanimously modified, on the law and the facts, to deem plaintiffs' motion to reargue as one to renew, to grant renewal, and, upon renewal, to adhere to the prior order changing venue, and otherwise affirmed, without costs.   Appeal from the order of December 6, 2000, unanimously dismissed, without costs, as moot.

We grant renewal because the motion court apparently did not receive plaintiffs' opposition papers to defendant's cross motion to change venue, through no fault of plaintiffs.   Upon renewal, we find that plaintiffs' deposition testimony leaves no question that both had completed their move from Bronx County to New York County before commencement of the action.   Accordingly, Bronx County is not a proper venue (CPLR 503[a], 510[1] ).