You are here: / / DEFENDANTS DID NOT PRESENT SUFFICIENT EVIDENCE IN SUPPORT OF THEIR MOTION...
,

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

 

You might also like
PLAINTIFF’S LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFF FELL ATTEMPTING TO USE AN INVERTED BUCKET TO STEP UP TO AN ELEVATED PLATFORM (FIRST DEPT).
RE: IN VITRO FERTILIZATION: RETRIEVING AND FERTILIZING THE EGGS ARE SUBJECT TO THE MEDICAL-MALPRACTICE STATUTE OF LIMITATIONS; STORING AND MAINTAINING THE FROZEN EGGS ARE SUBJECT TO THE ORDINARY NEGLIGENCE STATUTE OF LIMITATIONS; THE MEDICAL MALPRACTICE ACTIONS ARE UNTIMELY; THE ORDINARY NEGLIGENCE ACTIONS ARE TIMELY (FIRST DEPT).
Assumption of Risk Extends to Condition of Outside Basketball Court
FAMILY COURT SHOULD NOT HAVE RELIED SOLELY ON THE IN CAMERA INTERVIEW WITH THE EIGHT-YEAR-OLD CHILD IN THIS MODIFICATION OF CUSTODY CASE, MATTER REMITTED (FIRST DEPT). ​
IN COMPUTING THE AMOUNT OWED IN THIS FORECLOSURE ACTION, THE REFEREE RELIED ON AN AFFIDAVIT FROM A BANK EMPLOYEE WHICH DID NOT INCLUDE THE RELATED BUSINESS RECORDS; THE AFFIDAVIT THEREFORE WAS INADMISSIBLE HEARSAY (SECOND DEPT).
Judicial Notice and Collateral Estoppel Re: Philippine Law and a Philippine Court Order Improperly Applied—Related Conspiracy Conviction Vacated/Emails and Newspaper Articles, Although Hearsay, Properly Admitted
PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT).
THAT THE LADDER WAS NOT DEFECTIVE DID NOT MATTER, THE LADDER WAS NOT AN ADEQUATE SAFETY DEVICE UNDER THE CIRCUMSTANCES AND THE LADDER WAS NOT ADEQUATELY SECURED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

WHETHER PLAINTIFF USED ONE OR BOTH HANDS TO MANIPULATE A HOSE WHILE STANDING... ALTHOUGH THIS NON-TORT ACTION AGAINST THE NYC DISTRICT ATTORNEY DID NOT TRIGGER...