| Frontier Ins. Co. in Rehabilitation v Big Apple Roofing Co.,Inc. |
| 2008 NY Slip Op 02941 [50 AD3d 1239] |
| April 3, 2008 |
| Appellate Division, Third Department |
| Frontier Insurance Company in Rehabilitation, Appellant, v BigApple Roofing Company, Inc., et al., Respondents. |
—[*1] Arthur J. Semetis, P.C., New York City (Arthur J. Semetis of counsel), forrespondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Meddaugh, J.), entered June 7,2007 in Sullivan County, which granted defendants' motion for a change of venue.
Plaintiff issued performance bonds on behalf of a nonparty to this action in connection withconstruction projects for work on, among other things, a high school in New York County. Thesebonds were indemnified by defendants. When the nonparty defaulted, plaintiff contracted to haveall the projects completed. Thereafter, plaintiff commenced this action in Sullivan County,alleging as relevant here that defendants breached their obligation to reimburse plaintiff for thecost of completion of the high school project. Supreme Court granted defendants' motion,pursuant to CPLR 510 (3), for a change of venue from Sullivan County—plaintiff'sprincipal place of business—to New York County, based upon the convenience of materialnonparty witnesses. Plaintiff appeals and we now reverse.
A party seeking a change of venue pursuant to CPLR 510 (3) must assert the names andaddresses of the witnesses, the substance and materiality of their expected testimony on theissues presented, their willingness to testify and the manner in which they will be inconveniencedby a trial in the venue where the action was commenced (see Gissen v Boy Scouts of Am., 26 AD3d 289, 290-291 [2006]; Manchester Tech. v Hansen, 6 AD3d806, 807 [2004]; Vasta v Village of Liberty, 235 AD2d 1006, 1007 [1997]). Here, ofthe five material nonparty witnesses [*2]listed by defendants,only three are named and defendants have offered no explanation for their failure to name theremaining two witnesses (cf. Manchester Tech. v Hansen, 6 AD3d at 807). In addition,defendants failed to contact all but one of the named nonparty witnesses to determine awillingness to testify, the substance of that testimony and the potential inconvenience of a trial inSullivan County. Regarding the sole witness who was contacted, defendants failed, beyond aconclusory statement of inconvenience, to establish the manner or extent to which the witnesswould be inconvenienced. In short, because defendants failed to meet their burden of establishingthat the convenience of material witnesses will be promoted by a change of venue, transfer ofvenue to New York County is unwarranted (see Gissen v Boy Scouts of Am., 26 AD3d at291; Rodriguez-Lebron v Sunoco,Inc., 18 AD3d 275, 276 [2005]; Jacobs v Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d299, 299-300 [2004]; Hernandez vRodriguez, 5 AD3d 269, 270 [2004]).
Furthermore, defendant Beqir Marku's submissions regarding his need for a change of venuedue to health problems do not establish that a trial in Sullivan County will be more detrimental tohis health than a trial in New York County (see Levi v Levi, 201 AD2d 794, 795 [1994];Zinker v Zinker, 185 AD2d 698, 698-699 [1992]; Kiamesha Concord v Kahn, 78AD2d 737, 738 [1980]). Finally, we note that defendants' remaining argument was not timelyinterposed and, thus, does not operate to relieve defendants of their burden under CPLR 510 (3)(see Kurfis v Shore TowersCondominium, 48 AD3d 300 [2008]). Accordingly, we reverse and remit the matter fortrial in Sullivan County.
Peters, Rose, Kane and Malone Jr., JJ., concur. Ordered that the order is reversed, on the law,with costs, and motion denied.