Boral v. Clarkson University

Mar 23, 2000
Versions:270 A.D.2d 776
706 N.Y.S.2d 360
2000 N.Y. App. Div. LEXIS 3091
—Spain, J.

Appeal from an order of the Supreme Court (Demarest, J.), entered July 6, 1999 in St. Lawrence County, which denied defendant’s motion for a change of venue.

Plaintiff commenced this action in Nassau County, her place of residence, seeking to recover for personal injuries incurred when she slipped and fell on defendant’s sidewalk. Following joinder of issue, defendant moved pursuant to CPLR 510 (3) to change venue from Nassau County to St. Lawrence County where its campus is located. Supreme Court denied the motion and defendant appeals.

*777We affirm. CPLR 510 (3) provides for a discretionary change of venue where “the convenience of material witnesses and the ends of justice will be promoted by the change.” The proponent of such a motion bears the burden of proof and must “supply the names, addresses and occupations of the witnesses whose convenience [it] claims will be affected, indicate that the prospective witnesses have been contacted and are willing to testify on [its] behalf and specify the substance of each witness’s testimony, which must be necessary and material” (Andros v Roderick, 162 AD2d 813, 814; see, Stainbrook v Colleges of the Senecas, 237 AD2d 865; Stoyer v Feeney, 165 AD2d 946).

Based upon our review of defendant’s motion papers, we find that these requirements have not been satisfied. Significantly, defendant has not supplied the names, addresses or occupations of the witnesses whose convenience it claims will be affected, has not indicated that the prospective witnesses have been contacted and are willing to testify on its behalf, has not specified the substance of each witness’s testimony nor made a showing that such testimony is necessary and material. Accordingly, we perceive no basis upon which to conclude that Supreme Court abused its discretion in denying defendant’s motion (see, Stainbrook v Colleges of the Senecas, supra; Stoyer v Feeney, supra; Barney v Rochester Inst. of Technology, 105 AD2d 516).

Cardona, P. J., Crew III, Carpinello and Mugglin, JJ., concur. Ordered that the order is affirmed, with costs.