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Carey v. Five Brothers

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 10, 2009

BRUCE CAREY, ET AL., APPELLANTS,
v.
FIVE BROTHERS, INC., ET AL., RESPONDENTS, ET AL., DEFENDANT.

In a consolidated action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated October 1, 2007, which granted the motion of the defendant Darr Contracting Corp. to change the venue of the action from Kings County to Suffolk County, and granted the separate motions of the defendants J. Petrocelli Contracting, Inc., and the defendants HK New Plan Marwood Sunshine Cheyenne, LLC, and New Plan Excel Realty Trust, Inc., and that branch of the separate motion of the defendants Stop & Shop Supermarket Company, Stop & Shop Food Stores, Inc., and Stop & Shop, Inc., which were for the same relief, and, in effect, denied their cross motion to retain venue in Kings County or, in the alternative, to change venue to New York County.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., MARK C. DILLON, JOSEPH COVELLO and JOHN M. LEVENTHAL, JJ.

(Index No. 10423/06)

DECISION & ORDER

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

Under the circumstances, the Supreme Court providently exercised its discretion in changing the venue of this action from Kings County to Suffolk County (see Canaan v Costco Wholesale Membership, Inc., 49 AD3d 583, 584-585; Clase v Sidoti, 20 AD3d 330, 331; Crew v St. Joseph's Med. Ctr., 19 AD3d 205, 206; Halina Yin Fong Chow v Long Is. R.R., 202 AD2d 154, 155; Caplin v Ranhofer, 167 AD2d 155, 157).

The plaintiffs' remaining contentions are without merit.

PRUDENTI, P.J., DILLON, COVELLO and LEVENTHAL, JJ., concur.

20090310

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