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DEFENDANTS DID NOT PRESENT SUFFICIENT EVIDENCE IN SUPPORT OF THEIR MOTION TO CHANGE VENUE (FIRST DEPT).

The First Department reversing Supreme Court, determined defendants did not present sufficient evidence in support of their motion to change venue. The plaintiffs alleged the defendants, who were hired to paint newly-constructed residential property, did substandard work. Suit was brought in the county of plaintiffs’ residence and business, New York County. The defendants sought to change the venue to Suffolk County where the property is located and defendants reside:

Where venue has properly been designated by the plaintiff based on the residence of either party, a defendant seeking a change of venue under CPLR 510(3) must make a detailed evidentiary showing that the nonparty witnesses will, in fact, be inconvenienced absent such relief. The affidavit of the moving party under CPLR 510(3) must (1) contain the names, addresses, and occupations of witnesses expected to be called; (2) disclose the facts upon which such witnesses are expected to testify, in order that the court may determine whether such witnesses are material and necessary; (3) demonstrate that such witnesses are willing to testify; and (4) show that the witnesses would be inconvenienced absent a change in venue … …

… [D]efendants neglected to show with sufficient particularity the facts upon which nonparty McAulife is expected to testify. … Defendants did not submit an affidavit from McAulife, relying instead on counsel’s affirmation wherein he states that McAulife was “familiar with the work performed by defendants at 10 Two Trees Lane,” and “familiar with defendants in their business capacity.” Without further detail about when, where, and under what circumstances McAulife had occasion to become “familiar with the work,” defendants’ burden has not been met … . Defendants also fail to set forth McAulife’s name, address, and occupation, or how he would be inconvenienced absent a change in venue. The fact that the case involves work on a property located in Suffolk County does not justify an inversion of the burden of proof or relieve the moving party of its burden of establishing that the convenience of the nonparty witnesses would be served by a discretionary change of venue … . 10 Two Trees Lane LLC v Mahone, 2021 NY Slip Op 01371, First Dept 3-9-21

 

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