| Baez v Marcus |
| 2009 NY Slip Op 00182 [58 AD3d 585] |
| January 13, 2009 |
| Appellate Division, Second Department |
| Georgina Baez, Respondent, v Stuart Marcus et al.,Appellants. |
—[*1] Burns & Harris (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac andJillian Rosen] of counsel), for respondent.
In an action to recover damages for medical malpractice, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), datedJanuary 24, 2008, as, in effect, upon granting reargument, adhered to its original determinationin an order of the same court dated September 5, 2007, denying that branch of their cross motionwhich was pursuant to CPLR 511 to change venue from Kings County to New York County.
Ordered that the order is affirmed insofar as appealed from, with costs.
As the Supreme Court reviewed the merits of the defendants' arguments on their motion forleave to reargue, the court, in effect, granted reargument and adhered to its originaldetermination. Therefore, the order dated January 24, 2008, made upon reargument, isappealable (see Matter of Mattie M. vAdministration for Children's Servs., 48 AD3d 392, 393 [2008]; McNeil v Dixon, 9 AD3d 481,482 [2004]).
A demand to change venue based on the designation of an improper county (seeCPLR 503 [a]; 510 [1]) must be "served with the answer or before the answer is served" (CPLR511 [a]). Here, since the defendants failed to serve a timely demand for a change of venue toNew York County, and failed to make a motion for that relief within the statutory 15-day period(see CPLR 511 [b]), they were not entitled as of right to a change of venue to New YorkCounty (see Obas v [*2]Grappell, 43 AD3d 431 [2007]; Joyner-Pack v Sykes, 30 AD3d469 [2006]; Harleysville Ins. Co. vErmar Painting & Contr., Inc., 8 AD3d 229, 230 [2004]). Thus, their motion "becameone addressed to the court's discretion" (Callanan Indus. v Sovereign Constr. Co., 44AD2d 292, 295 [1974]; see Obas v Grappell, 43 AD3d at 432; Pittman v Maher,202 AD2d 172, 175 [1994]). Upon reargument, the Supreme Court providently exercised itsdiscretion since the defendants failed to move promptly for a change of venue after ascertainingthe plaintiff's alleged true residence (seeAcosta v Hadjigavriel, 6 AD3d 636 [2004]; Runcie v Cross County Shopping Mall,268 AD2d 577 [2000]). In any event, the defendants failed to meet their initial burden ofdemonstrating that none of the parties resided in Kings County at the time of the commencementof the action (see Galan v Delacruz,4 AD3d 449 [2004]; Bailon v Avis Rent A Car, 270 AD2d 439 [2000];Llorca v Manzo, 254 AD2d 396, 397 [1998]). Spolzino, J.P., Santucci, Miller, Dickersonand Eng, JJ., concur.