| Thomas v Guttikonda |
| 2009 NY Slip Op 09212 [68 AD3d 853] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Herbert Thomas, Respondent, v Veeranjaneya V.Guttikonda et al., Appellants, et al., Defendants. |
—[*1] Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York, N.Y. (RhondaE. Kay of counsel), for respondent.
In an action to recover damages for medical malpractice, the defendants Veeranjaneya V.Guttikonda, Mahrous F. Tobia, Sameh S. George, Eric Thantun, and the Seaview MedicalAnesthesia Group appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Dabiri, J.), dated November 21, 2008, as denied their motion to change thevenue of the action from Kings County to Richmond County pursuant to CPLR 510 and 511.
Ordered that the order is affirmed insofar as appealed from, with costs.
A demand to change venue based on the designation of an improper county (seeCPLR 510 [1]) "shall be served with the answer or before the answer is served" (CPLR 511[a]). Since the appellants failed to serve a timely demand for a change of venue and failed tomake a motion within the 15-day period required under the statute (see CPLR 511 [b]),they were not entitled to change the venue of this action as of right (see Baez v Marcus, 58 AD3d 585,586 [2009]; Jeffrey L. Rosenberg &Assoc., LLC v Lajaunie, 54 AD3d 813, 816 [2008]; Obas v Grappell, 43 AD3d 431 [2007]). Thus, their motion"became one addressed to the court's discretion" (Callanan Indus. v Sovereign Constr. Co.,44 AD2d 292, 295 [1974]; see Baez v Marcus, 58 AD3d at 586; Jeffrey L.Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d at 816; Obas v Grappell, 43 AD3dat 432). While the appellants contend that their noncompliance with the time limit should beoverlooked since they moved promptly after discovering the purported true residence of thedefendant Edwin M. Chang, there was no evidence of any willful omissions or misleadingstatements regarding Chang's residence by the plaintiff (see Joyner-Pack v Sykes, 30 AD3d 469 [2006]; P.T.R. Co. v Teitelbaum, 2 AD3d609, 610 [2003]; Pittman v Maher, 202 AD2d 172, 175 [1994]; cf. Horowicz vRSD Transp., 249 AD2d 511 [1998]). Accordingly, the Supreme Court providentlyexercised its discretion in denying that branch of the appellants' motion which was to change thevenue of this action pursuant to CPLR 510 (1).
The Supreme Court providently exercised its discretion in denying that branch of theappellants' motion which was to change the venue of this action pursuant to CPLR 510 (3) sincethe [*2]appellants failed to demonstrate that "the convenience ofmaterial witnesses and the ends of justice [would] be promoted by the change" (O'Brien vVassar Bros. Hosp., 207 AD2d 169, 171 [1995], quoting CPLR 510 [3]). Dillon, J.P., Miller,Eng, Hall and Sgroi, JJ., concur.