STRATTON v. DUEPPENGIESSER

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

Douglas STRATTON, Individually, and Alex Molins, as Administrator for the Estate of Donna Stratton, Deceased, Plaintiffs-Appellants, v. Arnold DUEPPENGIESSER, Michael Dueppengiesser, James Dueppengiesser and Peter Dueppengiesser, Doing Business Under the Name and Style of Dueppengiesser Dairy Company, and Stanley R. Schneckenburger, Defendants-Respondents.

Decided: March 21, 2001

PRESENT:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and KEHOE, JJ. Stephen D. Aronson, Canandaigua, for plaintiffs-appellants. Thomas P. Kawalec, Buffalo, for defendants-respondents.

 Supreme Court did not abuse its discretion in denying plaintiffs' motion pursuant to CPLR 510(3) seeking to change venue from Wyoming County to Erie County.   Plaintiffs failed to establish that the convenience of material witnesses and the ends of justice would be promoted by the change (see, CPLR 510[3] ).  “While calendar congestion is certainly a factor to be considered in deciding a motion to change venue pursuant to CPLR 510 (subd 3) * * *, it is not controlling” (A.M.I. Intl. v. Gary Pool Sales & Serv., 94 A.D.2d 890, 463 N.Y.S.2d 553).   In any event, the assertion of plaintiffs' attorney that the action could be tried more expediently in Erie County is equivocal and based on hearsay, and thus is insufficient to establish calendar congestion (see, Ament v. Church of Annunciation of Elma, 247 A.D.2d 843, 668 N.Y.S.2d 140;  Schapiro & Reich v. Fuchsberg, 172 A.D.2d 1080, 1080-1081, 571 N.Y.S.2d 398).

Order unanimously affirmed without costs.

MEMORANDUM: