| Fitzsimons v Brennan |
| 2015 NY Slip Op 03801 [128 AD3d 634] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| Maryann Fitzsimons et al., Individually and asAdministrators of the Estate of Kerry Fitzsimons, Deceased,Respondents, v Kevin Brennan et al., Appellants. |
Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for appellantsKevin Brennan and Kristine Brennan.
Wade Clark Mulcahy, New York, N.Y. (Paul F. Clark and Lora H. Gleicher ofcounsel), for appellant Marist College.
Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Stephen C.Glasser of counsel), for respondents.
In an action to recover damages for personal injuries, the defendants Kevin Brennanand Kristine Brennan appeal, and the defendant Marist College separately appeals, (1), aslimited by their respective briefs, from so much of an order of the Supreme Court,Suffolk County (Martin, J.), dated January 8, 2013, as denied their separate motions for achange of venue, and (2) from an order of the same court dated May 16, 2013, whichdenied the motion of the defendant Marist College, joined in by the defendants KevinBrennan and Kristine Brennan, for leave to renew and reargue their prior separatemotions for a change of venue.
Ordered that the appeal from so much of the order dated May 16, 2013, as deniedthat branch of the motion of the defendant Marist College, joined in by the defendantsKevin Brennan and Kristine Brennan, which was for leave to reargue, is dismissed, as noappeal lies from an order denying reargument; and it is further,
Ordered that the order dated January 8, 2013, is affirmed; and it is further,
Ordered that the order dated May 16, 2013 is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs.
In January 2012, Kerry Fitzsimons was a student at Marist College, located inDutchess County. Kerry, along with four other students, had leased an off-campus housein Poughkeepsie, Dutchess County, from Kevin Brennan and Kristine Brennan. Kerryand her housemates were residing in this house when, in the early morning of January 21,2012, the house caught fire, and she and two other students died. Kerry's parents,Maryann Fitzsimons and Robert Fitzsimons, as administrators of her estate, andindividually, who are residents of Suffolk County, [*2]commenced this action in Suffolk County against MaristCollege and the Brennans.
The Brennans and Marist College separately moved for a change of venue fromSuffolk County to Dutchess County. By separate attorney affirmations, the defendantsargued that prospective nonparty witnesses, including police and fire officials, firstresponders, medical examiners, and college students who were present at the house onthe night of the fire, resided or worked in Dutchess County, and it would be inconvenientfor them to attend trial in Suffolk County. In an order dated January 8, 2013, theSupreme Court denied the defendants' separate motions.
Marist College moved for leave to renew and reargue, submitting proof, inter alia,that the plaintiffs had filed notices of claim against Dutchess County and other entities,which would require the trial to be held in Dutchess County. The Brennans joined in thismotion. In an order dated May 16, 2013, the Supreme Court denied the motion for leaveto renew and reargue.
CPLR 510 (3) provides that the court may, upon motion, change the place of the trialof an action where "the convenience of material witnesses and the ends of justice will bepromoted by the change" (CPLR 510 [3]). The party seeking the change, which isdiscretionary in nature, must set forth: (1) the names, addresses, and occupations ofmaterial witnesses, (2) the facts to which those witnesses will testify at trial, (3) ashowing that those witnesses are willing to testify, and (4) a showing that those witnesseswill be inconvenienced if the venue of the action is not changed (see Goldberg v Goldberg, 65AD3d 1282 [2009]; Walshv Mystic Tank Lines Corp., 51 AD3d 908, 909 [2008]; Shindler v Warf, 24 AD3d429, 430 [2005]; Giaimo vHastings, 19 AD3d 365 [2005]; O'Brien v Vassar Bros. Hosp., 207AD2d 169, 171-173 [1995]).
Although in moving for a change of venue under CPLR 510 (3), the defendantsprovided the names of certain college students who allegedly were present at the subjecthouse on the night preceding the fire, the defendants failed to offer sufficient proof of theaddresses of those students, the facts to which the students would testify, whether thestudents would be willing to testify, and that the students would be inconvenienced ifvenue was not changed. The defendants also provided the names of fire and policeofficers and first responders, without providing the current addresses of thoseindividuals, or the basic details which would be the subject of their anticipated testimony(see Walsh v Mystic Tank Lines Corp., 51 AD3d at 909). Since the defendantsfailed to meet their burden under CPLR 510 (3), the Supreme Court properly denied theirseparate motions for a change of venue (see M.I. v Trinity-Pawling Sch., 125 AD3d 615, 615-616[2015]; Walsh v Mystic Tank Lines Corp., 51 AD3d at 909; Shindler vWarf, 24 AD3d at 430; Giaimo v Hastings, 19 AD3d 365 [2005]; O'Brien vVassar Bros. Hosp., 207 AD2d at 174).
The Supreme Court also providently exercised its discretion in denying that branchof Marist College's motion, joined in by the Brennans, which was for leave to renew.Marist College failed to present "new facts" which were unavailable at the time of theoriginal motion that would have changed the prior determination (see CPLR2221; Matter of O'Gorman vO'Gorman, 122 AD3d 744, 745 [2014]; McElroy v Guida, 196 AD2d859 [1993]). Mastro, J.P., Leventhal, Maltese and Duffy, JJ., concur.