| Liere v State of New York |
| 2014 NY Slip Op 08891 [123 AD3d 1323] |
| December 18, 2014 |
| Appellate Division, Third Department |
[*1]
| Robert Liere, Doing Business as Liere Farms,Appellant, v State of New York, Respondent. |
Robert J. Cava, PC, West Babylon (Robert J. Cava of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), forrespondent.
Devine, J. Appeal from an order of the Court of Claims (Milano, J.), entered October16, 2013, which, among other things, denied claimant's motion to change venue fromAlbany County to Suffolk County.
Claimant commenced this action seeking damages from defendant based on thealleged malicious prosecution of an administrative proceeding by the Department ofEnvironmental Conservation. He subsequently moved, pursuant to CPLR 510 (3), tochange venue of the matter from Albany County to Suffolk County. The Court of Claimsdenied the motion and claimant now appeals.
To the extent that claimant argues that this matter is properly venued in SuffolkCounty pursuant to CPLR 503, as it was his place of residency at the time the action wascommenced, and pursuant to CPLR 507, because the action allegedly affects the use andenjoyment of his real property in such county, and, alternatively, that the Clerk of theCourt of Claims improperly assigned the matter according to court rules (see 22NYCRR 206.4), such arguments are unpreserved as they are being raised for the firsttime on appeal (see Semzock vState of New York, 97 AD3d 1012, 1013 [2012]; Matter of LaBarbera v Town ofWoodstock, 55 AD3d 1093, 1094 [2008]). As for claimant's contention that theCourt of Claims erred in denying his motion to change venue inasmuch as therequirements under CPLR 510 were satisfied, we disagree.
An application to change venue may be granted, in the trial court's discretion, where[*2]"the convenience of material witnesses and the endsof justice will be promoted by the change" (CPLR 510 [3]; see State of New York v Quintal,Inc., 79 AD3d 1357, 1357 [2010]; Mroz v Ace Auto Body &Towing, 307 AD2d 403, 403 [2003]). Specifically, claimant was obligated toprovide the Court of Claims with the names and addresses of the nonparty witnesses thathad expressed their willingness to testify, the substance and relevance of their proposedtestimony, and how they would be unduly inconvenienced by appearing for trial inAlbany County (see Cavazzini vViennas, 82 AD3d 1343, 1344 [2011]; State of New York v Slezak Petroleum Prods., Inc., 78 AD3d1288, 1290 [2010]; FrontierIns. Co. in Rehabilitation v Big Apple Roofing Co., Inc., 50 AD3d 1239, 1239[2008]). Beyond providing the names and addresses of certain nonparty witnesses,claimant provided no explanation as to how these individuals would be inconveniencedbeyond stating that the witnesses, who reside and/or work in Suffolk County, would haveto travel a distance to Albany County. Further, claimant's assertion that changing venuewould serve the ends of justice in that he would not have to reimburse witnesses for theirtravel and lodging expenses or lost wages is unavailing. Finally, the timing of claimant'smotion, made four years after commencement of the proceeding, was not reasonable (see Jackson v Jamaica Hosp. Med.Ctr., 119 AD3d 1193, 1194 [2014]; Corona v Town of Hancock, 221AD2d 838, 838 [1995]). As such the Court of Claims did not abuse its discretion indenying claimant's motion.
Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ., concur. Ordered that the order isaffirmed, without costs.