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Goldberg v. Goldberg

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


September 29, 2009

SHIMON C. GOLDBERG, PLAINTIFF-RESPONDENT,
v.
TOBY GOLDBERG, ETC., DEFENDANT-RESPONDENT, JAMES W. KRUEGER, APPELLANT.

In an action to recover damages for personal injuries, the defendant James W. Krueger appeals from an order of the Supreme Court, Kings County (Balter, J.), dated November 26, 2008, which denied his motion pursuant to CPLR 510(3) to change the venue of the action from Kings County to Sullivan 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.

HOWARD MILLER, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL and L. PRISCILLA HALL, JJ.

(Index No. 15054/08)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the appellant's motion pursuant to CPLR 510(3) to change the venue of this action from Kings County to Sullivan County based on the convenience of material witnesses (see Frankel v Stavsky, 40 AD3d 918, 919; O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172). In support of his motion, the appellant failed to sufficiently establish that the nonparty witnesses for whose convenience the change of venue was sought were willing to testify on his behalf and would be inconvenienced if venue were not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909; Miszko v Leeds & Morelli, 269 AD2d 372; Cumberbatch v Gatehouse Motel & Rest., 265 AD2d 370; Rich v O'Connor, 212 AD2d 767). Moreover, the appellant failed to specify the nature and materiality of their anticipated testimony (see Shindler v Warf, 24 AD3d 429, 430; Giaimo v Hastings, 19 AD3d 365, 366; Weisemann v Davison, 162 AD2d 448).

MILLER, J.P., BALKIN, LEVENTHAL and HALL, JJ., concur.

20090929

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