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Walton v. Mercy College

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 2, 2009

CHRISTOPHER WALTON, PLAINTIFF-RESPONDENT,
v.
MERCY COLLEGE, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered August 19, 2008, which denied the motion of defendant SpectaGuard Acquisition, LLC i/s/h/a Allied Security Inc., LLC (Specta/Allied) to change venue from Bronx County to Westchester County, unanimously affirmed, without costs.

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.

Tom, J.P., Saxe, Sweeny, Acosta, Abdus-Salaam, JJ.

13259/06

The court properly denied Specta/Allied's motion to change venue in this action where plaintiff, a resident of Bronx County, seeks damages for injuries suffered when he was allegedly assaulted in a dormitory while a student at defendant Mercy College located in Westchester County. Specta/Allied failed to make the requisite showing that retention of the action in Bronx County would inconvenience the Dobbs Ferry police officers who investigated the assault (see CPLR 510[3]). Specta/Allied did not submit proof in admissible form concerning the location of the officers' residences for the motion court to determine whether the distance from their homes to the Bronx County courthouse is greater than the distance to the Westchester County courthouse (see Montero v Elrac, Inc., 300 AD2d 9 [2002]; compare Henry v Central Hudson Gas & Elec. Corp., 57 AD3d 452 [2008]). Moreover, assuming arguendo that all four officers indeed reside in Westchester County, plaintiff submitted evidence showing that the differences in distance and time between the Bronx courthouse and the Westchester courthouse were not significant, and any inconvenience to the witnesses would be minimal (see Timan v Sayegh, 49 AD3d 274 [2008]; Cardona v Aggressive Heating, 180 AD2d 572 [1992]). Furthermore, Specta/Allied failed to set forth the facts as to which the subject police officers would testify and how such testimony would be material and necessary to its defense (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908 [2008]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090602

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