| Simon v Usher |
| 2010 NY Slip Op 03777 [73 AD3d 415] |
| May 4, 2010 |
| Appellate Division, First Department |
| Allen Simon et al., Appellants, v Sol M. Usher et al.,Respondents. |
—[*1] Kopff, Nardelli & Dopf LLP, New York (Martin B. Adams of counsel), for Sol M. Usher,Sol M. Usher, M.D., P.C., F.A.C.S., Maxwell M. Chait, Hartsdale Medical Group, P.C., andWhite Plains Hospital Center, respondents. Rende, Ryan & Downes, LLP, White Plains (Roland T. Koke of counsel), for Sheldon Alter,Mid-Westchester Medical Associates, LLP, The Westchester Medical Group, P.C. and MarianneMonahan, respondents.
Order, Supreme Court, Bronx County (Maryann Brigantti-Hughes, J.), entered October 27,2009, which, in a medical malpractice action, granted the motion of defendants Usher, Chait,Hartsdale Medical Group, P.C. and White Plains Hospital Center to change venue from BronxCounty to Westchester County, unanimously reversed, on the law, without costs, and the motiondenied.
Although the moving defendants made a timely demand for a change of venue, their motionfor such relief was untimely. A defendant "may move to change the place of trial within fifteendays after service of the demand," unless the plaintiff consents to the change of venue within fivedays of service of the demand (CPLR 511 [b]). Here, the motion for a change of venue, made 20days after service of the demand, must be rejected as untimely (see Singh v Becher, 249AD2d 154 [1998]). Contrary to moving defendants' claim, they were not entitled to the five-dayextension in CPLR 2103 (b) (2) for time periods measured from service by mail (seeThompson v Cuadrado, 277 AD2d 151 [2000]). Furthermore, the failure of the remaining[*2]defendants to serve a demand to change venue with or priorto their answer was fatal to their request to change venue (see Kurfis v Shore Towers Condominium, 48 AD3d 300 [2008];CPLR 511 [a]). Concur—Gonzalez, P.J., Tom, Renwick, DeGrasse and Abdus-Salaam, JJ.