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Ramos v. Cooper Tire and Rubber Co.

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


May 12, 2009

MARCELINO RAMOS, RESPONDENT,
v.
COOPER TIRE AND RUBBER COMPANY, APPELLANT, ET AL., DEFENDANTS.

In an action, inter alia, to recover damages for personal injuries, the defendant Cooper Tire and Rubber Company appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated September 18, 2008, which denied its motion, denominated as one for leave to renew its prior motion pursuant to CPLR 510(3) to change the place of trial of the action from Kings County to Ulster County, but which was, in effect, a motion pursuant to CPLR 510(1) and 511 to change the place of trial of the action from Kings County to Ulster 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.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, HOWARD MILLER, THOMAS A. DICKERSON and CHERYL E. CHAMBERS, JJ.

(Index No. 24972/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the appellant's motion, in effect, pursuant to CPLR 510(1) and 511 to change the place of trial of the action from Kings County to Ulster County (see Baez v Marcus, 58 AD3d 585, 586; Obas v Grappell, 43 AD3d 431, 432; Callanan Indus. v Soverign Constr. Co., 44 AD2d 292, 295). The appellant failed to meet its initial burden of demonstrating that none of the parties resided in Kings County when the action was commenced (see CPLR 503[a]; Baez v Marcus, 58 AD3d at 586; Galan v Delacruz, 4 AD3d 449; Llorca v Manzo, 254 AD2d 396, 397).

MASTRO, J.P., FISHER, MILLER, DICKERSON and CHAMBERS, JJ., concur.

20090512

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