RUNCIE v. CROSS COUNTY SHOPPING MALL

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

Winston RUNCIE, et al., appellants, v. CROSS COUNTY SHOPPING MALL, et al., respondents, et al., defendants.

Decided: January 31, 2000

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN and HOWARD MILLER, JJ. Michael G. O'Neill, New York, N.Y. (Susan K. Sively of counsel), for appellants. Calabrese & Calabrese, LLP, White Plains, N.Y. (Dario DiLello of counsel), for respondents Cross County Shopping Mall, Marx Realty & Improvement Co., Inc., and United Shopping Centers, Inc. McAndrew, Conboy & Prisco, Woodbury, N.Y. (Robert M. Ortiz of counsel), for respondents CVS New York, Inc., and Melville Corporation.

In an action, inter alia, to recover damages for false arrest and assault, the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated April 26, 1999, which granted the motion of the defendants Cross County Shopping Mall, Marx Realty & Improvement Co., Inc., and United Shopping Centers, Inc., in which the defendants CVS New York, Inc., and Melville Corporation joined, to change the venue of the action from Kings County to Westchester County.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the Clerk of the Supreme Court, Westchester County, is directed to deliver all papers filed in this action to the Clerk of the Supreme Court, Kings County.

 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] ).   Where, as here, the respondents fail to serve a timely demand for a change of venue and fail to make a motion within the 15-day requirement of the statute (see, CPLR 511[b] ), they are not entitled to a change of venue as of right (see, Singh v. Becher, 249 A.D.2d 154, 672 N.Y.S.2d 60;  Newman v. Physicians' Reciprocal Insurers, 204 A.D.2d 210, 612 N.Y.S.2d 863;  Pittman v. Maher, 202 A.D.2d 172, 174, 608 N.Y.S.2d 199;  Korman v. City of New York, 89 A.D.2d 888, 453 N.Y.S.2d 452;  Matter of D.M.C. Constr. Corp. v. Nash Steel Corp., 70 A.D.2d 635, 637, 416 N.Y.S.2d 649).   In addition, the respondents did not move promptly for a change of venue after ascertaining the alleged true residence of the plaintiff Winston Runcie (cf., Buziashvili v. Ryan, 264 A.D.2d 797, 695 N.Y.S.2d 396;  O'Connor v. Roman Catholic Diocese of Rockville Centre, 231 A.D.2d 700, 648 N.Y.S.2d 42;  Philogene v. Fuller Auto Leasing, 167 A.D.2d 178, 561 N.Y.S.2d 250).

 Furthermore, the Supreme Court improvidently exercised its discretion in granting the respondents' motion to change venue pursuant to CPLR 510(3).   The respondents failed to show that the convenience of nonemployee witnesses would be served by a change of venue (see, Cumberbatch v Gatehouse Motel & Restaurant, 265 A.D.2d 370, 697 N.Y.S.2d 84;  O'Brien v. Vassar Bros. Hosp., 207 A.D.2d 169, 173, 622 N.Y.S.2d 284;  D'Argenio v. Monroe Radiological Assocs., P.C., 124 A.D.2d 541, 507 N.Y.S.2d 686;  Lundgren v. Lovejoy, Wasson, Lundgren & Ashton, 82 A.D.2d 912, 440 N.Y.S.2d 692).

MEMORANDUM BY THE COURT.

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