Mohsin v Port Auth. of N.Y. & N.J.

Mohsin v Port Auth. of N.Y. & N.J. 2011 NY Slip Op 03119 Decided on April 19, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 19, 2011
Tom, J.P., Mazzarelli, Acosta, Renwick, Freedman, JJ.
4830 304803/08

[*1]Mohammad Mohsin, Plaintiff-Appellant,

v

Port Authority of New York and New Jersey, et al., Defendants-Respondents.



 
A. Ali Yusaf, Richmond Hill, (Stephen A. Skor of counsel), for
appellant.
Brown Gavalas & Fromm LLP, New York (David H. Fromm
of counsel), for respondents.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered on or about December 23, 2009, which, in an action for personal injuries, granted defendants' motion to change venue from Bronx County to Queens County pursuant to CPLR 510(3), unanimously reversed, on the law, without costs, and the motion denied.

Defendants' moving papers were deficient inasmuch as they failed to provide the names, addresses and occupation of prospective non-party witnesses, the proposed testimony, the witnesses' willingness to testify, and that the witnesses will be inconvenienced by the present venue (see Jacobs v Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d 299 [2004]); the
convenience of party witnesses is not a factor (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]). The affidavits submitted for the first time in defendants' reply papers should not have been considered by the court, as they improperly raised new facts not directly responsive to plaintiff's opposition, which merely highlighted the deficiency of defendants' initial papers (see Root v Brotmann, 41 AD3d 247 [2007]; Job v Subaru Leasing Corp., 30 AD3d 159 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 19, 2011

CLERK