| 25/27 Corp. v Mormile |
| 2007 NY Slip Op 06984 [43 AD3d 1154] |
| September 25, 2007 |
| Appellate Division, Second Department |
| 25/27 Corp. et al., Respondents, v Andrea Mormile et al., Appellants. |
—[*1] Fallon & Fallon, LLP, Sayville, N.Y. (David P. Fallon of counsel), for respondents.
In an action, inter alia, to recover damages for conversion, unjust enrichment, and breach offiduciary duty, the defendants appeal from an order of the Supreme Court, Suffolk County(Molia, J.), dated October 31, 2006, which denied their motion pursuant to CPLR 510 (3) tochange the venue of the action from Suffolk County to Richmond County.
Ordered that the order is affirmed, with costs.
The defendants' motion pursuant to CPLR 510 (3) to change the venue of the action, whichwas based on the convenience of material witnesses, did not require that the defendants serve ademand to change venue with the answer or before serving the answer (see Byron v Spektor,266 AD2d 253 [1999]; Montoya v Brown, 233 AD2d 374 [1996]; Saal Prods.Sales, Inc. v Schatz Mfg. Co., 216 App Div 544, 545-546 [1926]; cf. CPLR 511 [a],[b]).
Nonetheless, the defendants' motion to change venue was properly denied. The convenienceof the son of the defendant Andrea Mormile must be excluded from consideration in determiningthe motion (see Cumberbatch v Gatehouse Motel & Rest., 265 AD2d 370 [1999];O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 173 [1995]; cf. Lundgren v Lovejoy,Wasson, Lundgren & Ashton, 82 AD2d 912 [1981]). Furthermore, the affidavits of RobertRampulla and Al Risi were insufficient to establish that the defendants were entitled to a changeof venue pursuant to CPLR 510 (3). Those [*2]witnesses failed todisclose the nature and materiality of their anticipated testimony (see Shindler v Warf, 24 AD3d429, 429-430 [2005]; Fernandes v Lawrence, 290 AD2d 412 [2002]; Romero vMitchelltown Apts., 281 AD2d 612 [2001]). Those witnesses do not claim to know how thedefendants disbursed the money after the closings, which goes to the heart of the allegations inthis action. Therefore, the defendants failed to demonstrate that they were entitled to a change ofvenue for the convenience of material witnesses (see Fernandes v Lawrence, 290 AD2dat 412; O'Brien v Vassar Bros. Hosp., 207 AD2d at 173). Crane, J.P., Ritter, Fisher,Covello and Dickerson, JJ., concur.