| Kurfis v Shore Towers Condominium |
| 2008 NY Slip Op 01435 [48 AD3d 300] |
| February 19, 2008 |
| Appellate Division, First Department |
| Lillian Kurfis, Appellant, v Shore Towers Condominium etal., Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains (John M. Flannery ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 30, 2006, whichgranted defendants' motion to change venue from Bronx County to Queens County, unanimouslyreversed, on the law, without costs, the order vacated and the motion denied.
Bronx County was an improper venue for this action as it appears that plaintiff anddefendants all reside in Queens County and the action arose in Queens. Nevertheless, for achange in venue predicated on a plaintiff's designation of an improper county (CPLR 510 [1]),the demand for change of venue must be served with or prior to the answer (CPLR 511 [a]).Here, the demand was served more than a year after joinder of issue. As the statutory procedurewas not followed, defendants were not entitled to a change of venue as of right (Banks v NewYork State & Local Employees' Retirement Sys., 271 AD2d 252 [2000]), and defendants'demand was ineffective. Accordingly, plaintiff was not required to respond. Even though thevenue is improper, there is no jurisdictional impediment to trial being conducted in BronxCounty (Matter of Howard v New YorkState Bd. of Parole, 5 AD3d 271, 272 [2004]).
Nor have defendants demonstrated that their untimely service of the demand resulted frommisleading statements by plaintiff regarding residence (cf. Philogene v Fuller AutoLeasing, 167 AD2d 178 [1990]) or from active efforts to conceal her residence (cf.Resciniti v Fairfax Partners, 309 AD2d 627 [2003]), such as would excuse the delay. Ratherthan making misstatements in the complaint regarding her residency, she made no statements.
The motion did not set forth a basis for a discretionary change in venue (CPLR 510 [3]), buteven if it had, the omission of affidavits or other proofs from material witnesses claiming to beinconvenienced by a trial in Bronx County (Castillo v Metropolitan Laundry Mach. Co.,299 AD2d 247 [2002]), as well as defendants' failure to identify such witnesses (Leopold vGoldstein, 283 AD2d 319 [2001]), would have been fatal to the motion.Concur—Tom, J.P., Nardelli, Williams and McGuire, JJ.