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EMMA LEWANDOWSKI ET AL. v. CHARLES AMBROSETTI ET AL. (05/19/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 19, 1969

EMMA LEWANDOWSKI ET AL., APPELLANTS,
v.
CHARLES AMBROSETTI ET AL., RESPONDENTS

In an action to recover damages for personal injuries, plaintiffs appeal from an order of the Supreme Court, Queens County, dated April 29, 1968, which granted defendants' motion to change the place of trial of the action from the County of Queens to the County of Orange, upon the ground that the convenience of material witnesses and the ends of justice will be promoted thereby.

Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

In our opinion, the moving papers failed to set forth the factual showing required to invoke the court's discretion (cf. Supplementary Practice Commentary on CPLR 510 in McKinney's Cons. Laws of N. Y., Book 7B, CPLR 501-2200). Upon the record presented, (a) defendants failed to justify the grounds of convenience of witnesses and ends of justice because their moving papers did not set forth, as required, an affidavit of merits and a showing of what was expected to be proved by the witnesses named (the police officer and St. Luke's Hospital) and the necessity and materiality of the testimony to be given by them; (b) the preponderance and character of plaintiffs' material witnesses (the two Queens physicians and plaintiff Anthony's Brooklyn employer) indicate that the convenience of witnesses and the ends of justice would best be served by keeping the trial in Queens County where these witnesses could more easily attend trial than in Orange County; and (c) defendants failed to establish, as required (CPLR 510, subd. 3), that the convenience of witnesses and the ends of justice would be served by a change of venue.

Disposition

Order reversed, on the law and the facts, with $10 costs and disbursements, and motion denied.

19690519

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