Stainbrook v. Colleges of the Senecas

Mar 20, 1997
Versions:237 A.D.2d 865
656 N.Y.S.2d 946
1997 N.Y. App. Div. LEXIS 2723
Mercure, J.

Appeal from an order of the Supreme Court (Henry, Jr., J.), entered August 1, 1996 in Albany County, which denied defendant’s motion for a change of venue.

On or about January 8, 1994 while a student at William Smith College in Ontario County, plaintiff was assaulted and raped in her dormitory room by a student from Hobart College. In April 1996, plaintiff commenced this action in Albany County against defendant. Following joinder of issue, defendant moved pursuant to CPLR 510 (3) to change venue from Albany County to Ontario County. Supreme Court denied the motion and defendant appeals.

We 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 party seeking the change of venue bears the burden of proof (see, Andros v Roderick, 162 AD2d 813, 814). Indeed, in order to demonstrate that venue should be changed, the moving party must "supply the names, addresses and occupations of the witnesses whose convenience he claims will be affected, indicate that the prospective witnesses have been contacted and are willing to testify on his behalf and specify the substance of each witness’s testimony, which must be necessary and material” (id., at 814; see, O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173; Hojohn v Hamilton, 78 AD2d 570).

Based upon our review of defendant’s papers in support of the motion, we find that it has failed to satisfy these requirements. Significantly, while defendant has identified the names of various witnesses it claims have knowledge pertinent to its defense of the action, it has failed to indicate that such witnesses have been contacted and are willing to testify or the substance of the witnesses’ testimony. Consequently, we cannot conclude that Supreme Court abused its discretion in denying defendant’s motion (see, Andros v Roderick, supra; see also, Hirsch v Canoha Transp., 124 AD2d 440).

Mikoll, J. P., Crew III, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.