Prato v. Arzt

Dec 28, 2010
Versions:79 A.D.3d 622
912 N.Y.S.2d 881

Order, Supreme Court, Bronx County (Cynthia Kern, J.), entered August 21, 2009, which denied defendant Alexander‘s motion to change venue, unanimously affirmed, without costs.

Defendant seeks to avoid the result of failing to move for a change of venue within 15 days after serving his demand (CPLR 511 [b]), and failing to offer a reason for the delay, by asserting that plaintiff engaged in duplicitous conduct. However, nowhere in his motion did defendant allege that plaintiff made “misleading statements as to [her] actual residence” (Pittman v Maher, 202 AD2d 172, 174 [1994] [internal quotation marks and citation omitted]). The record circumstances do not establish any impropriety by plaintiff. Thus, the untimeliness of defendant‘s motion is fatal to the motion (see id. at 175; Rosenthal v Bologna, 211 AD2d 436, 437 [1995]).

Defendant‘s argument that the court improperly declined to reject plaintiff‘s opposition to his motion as untimely pursuant to CPLR 2214 (b) is misguided. The issue was addressed and resolved by the motion court, which granted defendant‘s request for an opportunity to file a reply. More importantly, defendant has not shown that he suffered any prejudice as a result of the court‘s acceptance of plaintiff‘s late opposition papers (see Dinnocenzo v Jordache Enters., 213 AD2d 219 [1995]). Concur—Gonzalez, P.J., Mazzarelli, Saxe, Richter and Manzanet-Daniels, JJ.