DeGregorio v. DeGregorio

| N.Y. App. Div. | Jun 8, 1998

—In an action for a divorce and ancillary relief, the plaintiff husband appeals (1) from an order of the Supreme Court, Suffolk County (Henry, J.), dated October 15, 1996, which granted the defendant wife’s motion for a change of venue and transferred the action to Supreme Court, Westchester County, and (2), as limited by his brief, from so much of an order of the same court, dated August 11, 1997, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated October 15, 1996, is dismissed, as that order was superseded by the order dated August 11, 1997, made upon reargument; and it is further,

Ordered that the order dated August 11, 1997, is affirmed insofar as appealed from; and it is further,

Ordered that the defendant is awarded one bill of costs.

While a change of venue, generally, will not be granted for the convenience of a party, such relief may be granted where the inconvenience relates to a party’s health (see, Zinker v Zinker, 185 AD2d 698; Messinger v Festa, 94 AD2d 792). The moving party must establish by competent evidence his or her inability to travel (see, Zinker v Zinker, supra; Hoyt v Le Bel, 120 AD2d 973). Upon the record before us, the defendant sustained her burden of proving that her physical condition necessitated a change of venue.

The plaintiffs remaining contentions are without merit. Rosenblatt, J. P., Ritter, Krausman and McGinity, JJ., concur.