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Simon v. Usher

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 4, 2010

ALLEN SIMON, ET AL., PLAINTIFFS-APPELLANTS,
v.
SOL M. USHER, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Maryann Brigantti-Hughes, J.), entered October 27, 2009, which, in a medical malpractice action, granted the motion of defendants Usher, Chait, Hartsdale Medical Group, P.C. and White Plains Hospital Center to change venue from Bronx County to Westchester County, unanimously reversed, on the law, without costs, and the motion denied.

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.

Gonzalez, P.J., Tom, Renwick, DeGrasse, Abdus-Salaam, JJ.

305788/09

Although the moving defendants made a timely demand for a change of venue, their motion for such relief was untimely. A defendant "may move to change the place of trial within fifteen days after service of the demand," unless the plaintiff consents to the change of venue within five days of service of the demand (CPLR 511[b]). Here, the motion for a change of venue, made 20 days after service of the demand, must be rejected as untimely (see Singh v Becher, 249 AD2d 154 [1998]). Contrary to moving defendants' claim, they were not entitled to the five-day extension in CPLR 2103(b)(2) for time periods measured from service by mail (see Thompson v Cuadrado, 277 AD2d 151 [2000]). Furthermore, the failure of the remaining defendants to serve a demand to change venue with or prior to their answer was fatal to their request to change venue (see Kurfis v Shore Towers Condominium, 48 AD3d 300 [2008]; CPLR 511[a]).

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

20100504

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