Herrera v R. Conley Inc.

Herrera v R. Conley Inc. 2008 NY Slip Op 04924 [52 AD3d 218] [52 AD3d 218] June 3, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 13, 2008

Xiomara Herrera, an Infant, by Her Mother and Natural Guardian, Yesenia Herrera, Appellant,
v
R. Conley Inc. et al., Respondents.

—[*1] Elliot Ifraimoff & Associates, P.C., Forest Hills (David E. Waterbury of counsel), for appellant.

Cerussi & Spring, White Plains (Thomas F. Cerussi of counsel), for R. Conley Inc. and Tracey E. Bango, respondents.

Kent & McBride, P.C., New York (Christopher D. Devanny of counsel), for Jaime R. Herrera, respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 23, 2007, which granted defendant Herrera's motion and codefendants' cross motion to change venue from Bronx to Westchester County, unanimously reversed, on the law, without costs, and the motion denied.

Bronx County was an improper venue for this action as it appears that plaintiff and one defendant reside in Westchester County, the other two defendants reside in Erie and Jefferson Counties, and the action arose in Westchester. Nevertheless, for a change in venue predicated on a plaintiff's designation of an improper county (CPLR 510 [1]), the demand must be served with or prior to the answer (CPLR 511 [a]), unless plaintiff's misleading statements regarding residence caused defendants' untimely service of the demand (Philogene v Fuller Auto Leasing, 167 AD2d 178 [1990]), in which case the delay can be excused. While the allegations in the complaint with respect to residence were untrue, this was rectified with service of the bill of particulars in which plaintiff identified Westchester as her county of residence. Defendants failed, without explanation, to serve a demand for change of venue until more than eight months after the bill of particulars was served.

The motion and cross motion did not set forth a basis for a discretionary change in venue (CPLR 510 [3]), and defendants argued that their motion and cross motions were respectively made "as of right" pursuant to CPLR 511. Because the statutory procedure was not followed, defendants were not entitled to a change of venue as of right. Even if a discretionary venue change had been sought, the omission of affidavits or other proofs from material witnesses [*2]claiming to be inconvenienced by a trial in the Bronx, as well as defendants' failure to identify such witnesses, would have been fatal to the motion (see Kurfis v Shore Towers Condominium, 48 AD3d 300, 301 [2008]). Concur—Lippman, P.J., Mazzarelli, Williams, Sweeny and Acosta, JJ.