Thomas v Kane Constr. Group Inc.

Thomas v Kane Constr. Group Inc. 2017 NY Slip Op 06633 Decided on September 26, 2017 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 September 26, 2017
Friedman, J.P., Richter, Moskowitz, Gesmer, JJ.
4517N 152322/15

[*1] James J. Thomas, Plaintiff-Appellant,

v

Kane Construction Group Inc., et al., Defendants-Respondents, Modell's Sporting Goods, Inc., et al., Defendants.

Law Offices of Bruce E. Cohen & Associates, P.C., Melville (Bruce E. Cohen of counsel), for appellant.

Marshall Dennehey Warner Coleman & Goggin, Melville (Mark D. Wellman of counsel), for respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 28, 2017, which granted the motion of defendants Kane Construction Group Inc. and Southport 2013 LLC to change venue from New York County to Suffolk County, unanimously reversed, on the law, without costs, and the motion denied.

In seeking a change of venue to Suffolk County for the convenience of material witnesses (CPLR 510[3]), defendants' initial moving papers were deficient in not setting forth, inter alia, the names and addresses of witnesses who would be willing to testify, the nature and materiality of their anticipated testimony, and the manner in which they would be inconvenienced by a trial in New York County (see Job v Subaru Leasing Corp., 30 AD3d 159 [1st Dept 2006]). Defendants' attempt to cure these deficiencies in their reply papers improperly raised new facts that were not responsive to plaintiff's opposition, and should not be considered (id.; Marko v Culinary Inst. of Am., 245 AD2d 212 [1st Dept 1997]). In any event, the inconvenience of the two material witnesses identified in defendants' reply papers was not convincingly established, or sufficient to warrant the transfer of venue (see e.g. Gissen v Boy Scouts of Am., 26 AD3d 289, 291 [1st Dept 2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 26, 2017

CLERK