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Sunick v. Wadsworth

Supreme Court of New York, Fourth Department

September 27, 2013

ALBERT R. SUNICK, PLAINTIFF-RESPONDENT,
v.
JOHN M. WADSWORTH, DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered December 17, 2012. The order denied the motion of defendant to change the place of the trial from Erie County to Chautauqua County.

BURGIO, KITA & CURVIN, BUFFALO (JAMES P. BURGIO OF COUNSEL), FOR DEFENDANT-APPELLANT.

MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:

The parties were involved in an automobile/motorcycle accident in Chautauqua County, and plaintiff thereafter commenced this negligence action in Erie County. Defendant sought a change of venue from Erie County to Chautauqua County "upon the grounds that the convenience of material witnesses and the ends of justice will be promoted by the change." Supreme Court denied the motion, and we affirm. The standard of review for a change of venue is not whether the court abused its discretion but, rather, it is "whether such discretion was exercised in a provident manner" (O'Brien v Vassar Bros. Hosp., 207 A.D.2d 169, 172). Under the circumstances presented here, we cannot conclude that the court improvidently exercised its discretion in denying the motion to change venue. In our view, defendant failed to meet his burden of establishing that nonparty witnesses would in fact be inconvenienced in absence of a change of venue (see Huttenlocker v White, 298 A.D.2d 960, 960; O'Brien, 207 A.D.2d at 173).


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