Horowicz v. RSD Transportation

Apr 27, 1998
Versions:249 A.D.2d 511
671 N.Y.S.2d 335
1998 N.Y. App. Div. LEXIS 4629

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Kramer, J.), entered September 19, 1996, which, inter alia, denied its motion pursuant to CPLR 510 and 511 to change the venue of the action from Kings County to Rockland County.

Ordered that the order is affirmed, with costs.

On or about November 2, 1995, the defendant made a demand for a change of venue on the ground that the county designated by the plaintiffs was not a proper county pursuant to CPLR 510 (1). CPLR 511 (b) requires that a subsequent motion for a change of venue be made within 15 days after service of the demand (unless the plaintiffs have consented to the change). It is undisputed that the defendant did not move for that relief until on or about April 25, 1996. When such a motion is untimely, it is addressed to the court’s discretion rather than based on right (see, Fitzpatrick v Sullivan, Magee & Sullivan, 49 AD2d 902). In this case, the court did not improvidently exercise its discretion in denying the motion. Clearly, the defendant’s delay in moving for a change of venue was not caused by any willful omissions and misleading statements on the plaintiffs’ part regarding their residence (cf., Philogene v Fuller Auto Leasing, 167 AD2d 178). O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.