Janita Jarrett v Robert L. Berner

Jarrett v Berner 2004 NY Slip Op 04292 [8 AD3d 236] June 1, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Janita Jarrett et al., Appellants,
v
Robert L. Berner III et al., Respondents.

—[*1]

In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated January 7, 2004, which granted the defendants' motion to change the venue of the action from Kings County to Westchester County.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the Clerk of the Supreme Court, Westchester County, is directed to deliver to the Clerk of the Supreme Court, Kings County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511 [d]).

The Supreme Court erred in granting the defendants' motion to change venue of the action from Kings County to Westchester County pursuant to CPLR 510 (3). The defendants did not establish their entitlement to a change of venue based on the convenience of material, nonparty-witnesses (see O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173 [1995]). The defendants failed to demonstrate how the treating podiatrist, or any other material, nonparty-witness, would be inconvenienced in the event that a change of venue were not granted (see Small v Chrysler Corp., 288 AD2d 208 [2001]; Blumberg v Salem Truck Leasing, 276 AD2d 577 [2000]; Mallory v Long Is. R.R., 245 AD2d 493 [1997]). Accordingly, the motion should have been denied. Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.