Nyrell Joyner-Pack v Joseph Sykes

Joyner-Pack v Sykes 2006 NY Slip Op 04798 [30 AD3d 469] Decided on June 13, 2006 Appellate Division, Second 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 June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
HOWARD MILLER, J.P.
DAVID S. RITTER
DANIEL F. LUCIANO
ROBERT A. SPOLZINO
MARK C. DILLON, JJ.
2005-07823 DECISION & ORDER

[*1]Nyrell Joyner-Pack, etc., et al., respondents,

v

Joseph Sykes, etc., et al., defendants, Diana Weaver, etc., et al., appellants. (Index No. 28761/04)




Brown & Tarantino, LLC, Buffalo, N.Y. (Ann M. Campbell of
counsel), for appellants.
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E.
Fitzgerald, John M. Daly, Eugene S. R.
Pagano, and Mitchell L. Gittin of
counsel), for respondents.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendants Diana Weaver and Gloria Valencia appeal from an order of the Supreme Court, Kings County (Steinhardt, J.), dated May 25, 2005, which denied their motion to change the venue of the action from Kings County to Richmond County.

ORDERED that the order is affirmed, with costs.

A demand to change venue based on the designation of an improper county (see CPLR 510[1]) "shall be served with the answer or before the answer is served" (CPLR 511[a]). Since the appellants failed to serve a timely demand for a change of venue and failed to make a motion within the 15-day period required under the statute (see CPLR 511[b]), they were not entitled to a change of venue as a matter of right (see Parks v Costco Wholesale Membership, 19 AD3d 570; Harleysville Ins. Co. v Ermar Painting & Contr., Inc., 8 AD3d 229, 230; Figueroa v Stromfeld, 282 AD2d 429; Runcie v Cross County Shopping Mall, 268 AD2d 577). Furthermore, the Supreme Court providently exercised its discretion in denying the appellants' motion to change the venue of this action since there was no basis for their contention that they were misled by the plaintiffs as to [*2]the actual residences of the codefendants upon which venue was partially based (see P.T.R. Co. v Teitelbaum, 2 AD3d 609).

The appellants' remaining contentions are without merit or improperly raised for the first time on appeal.
MILLER, J.P., RITTER, LUCIANO, SPOLZINO and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court