Manzari v Burrows

Manzari v Burrows 2011 NY Slip Op 07712 Decided on November 1, 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 November 1, 2011
Friedman, J.P., Catterson, Moskowitz, Freedman, Abdus-Salaam, JJ.
5896N 104755/10

[*1]Robert J. Manzari, et al., Plaintiffs-Respondents,

v

John R. Burrows, etc., et al., Defendants-Appellants, "Jane Doe," etc., et al., Defendants.




Sheldon Farber, New York, for appellants.
Robert Dembia, P.C., New York, for respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 29, 2011, which, in this action to recover for alleged personal injuries sustained by plaintiff Robert J. Manzari while riding a horse at a stable owned and operated by defendants-appellants, denied defendants' motion to change venue to Delaware County, unanimously affirmed, without costs.

Defendants failed to sustain their burden of showing entitlement to a discretionary change of venue pursuant to CPLR 510(3) (see Aretakis v Tarantino, 300 AD2d 160 [2002]). In particular, defendants failed to present "affidavits or other proofs" from material witnesses claiming that they would be inconvenienced by testifying in New York County (Herrera v R. Conley Inc., 52 AD3d 218, 219 [2008]). Even if such affidavits are not required, defense counsel's assertion that the inconvenience was "obvious" and "manifest," is insufficient to meet defendants' burden (see Hernandez v Rodriguez, 5 AD3d 269, 270 [2004]). In addition, defendants failed to show that the testimony of the purportedly inconvenienced nonparty witnesses was material and necessary (Argano v Scuderi, 6 AD3d 211, 212 [2004]).

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

ENTERED: NOVEMBER 1, 2011

CLERK