| Wilkerson v 134 Kitty's Corp. |
| 2008 NY Slip Op 02577 [49 AD3d 718] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Ebony Wilkerson, Respondent, v 134 Kitty's Corp. et al.,Appellants, et al., Defendant. |
—[*1]
In an action to recover damages for personal injuries, the defendants 134 Kitty's Corp., 134Kitty's Corp., doing business as Freddy's, 134 Kitty's Corp., doing business as Slammer's, andEfren Rivera appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Vaughan, J.), dated July 19, 2006, as denied those branches of their motion whichwere for summary judgment dismissing the complaint insofar as asserted against them or,alternatively, for a change of venue of this action from Kings County to Otsego County.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the appellants' motion which was for summary judgment dismissing the plaintiff'scause of action alleging assault insofar as asserted against them, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofar asappealed from, with costs payable by the plaintiff.
The cause of action seeking to recover damages for assault is asserted against all thedefendants. Since the underlying events occurred on September 28, 2002 and the action was notcommenced by filing until July 5, 2005, the assault cause of action is untimely under theapplicable one-year statute of limitations (see CPLR 215 [3]), and the Supreme Courtshould have granted that branch of the appellants' motion which was for summary judgmentdismissing that cause of action insofar as asserted against them.
However, as to the negligence cause of action including, inter alia, the issue of piercing the[*2]corporate veil as to the defendant Efren Rivera, the appellantsfailed to establish their prima facie showing of entitlement to summary judgment (seeGiuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Matter of Morris v New York StateDept. of Taxation & Fin., 82 NY2d 135, 141 [1993]; Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]; Allstate Ins. Co. v Persampire, 45 AD3d 706 [2007]).
The Supreme Court providently exercised its discretion in denying that branch of theappellants' motion which was to change the venue of the action from Kings County to OtsegoCounty based upon "the convenience of material witnesses and the ends of justice" (CPLR 510[3]). The appellants failed to submit sufficient evidence of the criteria necessary to demonstrateentitlement to that relief (see O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173[1995]; Frankel v Stavsky, 40 AD3d918, 919 [2007]; Shindler vWarf, 24 AD3d 429, 430 [2005]). That branch of the appellants' motion which was tochange the venue of the action as a matter of right was properly denied, as it was untimely(see CPLR 511 [b]; Castillo v Metropolitan Laundry Mach. Co., 299 AD2d 247[2002]).
The appellants' remaining contention is without merit. Rivera, J.P., Miller, Dillon and Belen,JJ., concur.