Chimarios v. Duhl

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN
• Citation: Chimarios v. Duhl, 543 N.Y.S.2d 681, 152 A.D.2d 508 (N.Y. App. Div. 1989)
• Decision Date: 27 July 1989
• Parties: Alexandros CHIMARIOS, Plaintiff-Appellant, v. Benjamin DUHL, et al., Defendants-Respondents. Benjamin DUHL, et al., Third-Party Plaintiffs-Respondents, v. J & L WINDOWS, Third-Party Defendant-Respondent.

Page 681

543 N.Y.S.2d 681

152 A.D.2d 508

Alexandros CHIMARIOS, Plaintiff-Appellant, v. Benjamin DUHL, et al., Defendants-Respondents.

Benjamin DUHL, et al., Third-Party Plaintiffs-Respondents, v. J & L WINDOWS, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division First Department.

July 27, 1989.

C.E. Moin, New York City, for Chimarios.

B.M. Berk, New York City, for Duhl.

M.S. Rothman, New York City, for J & L Windows.

Before SULLIVAN, J.P., and ASCH, KASSAL and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Harold Baer, J.), entered June 21, 1988, which granted plaintiff's motion for reargument but adhered to the court's prior February 16, 1988 decision granting defendants' motion to change venue from New York County to Westchester County, unanimously modified, on the law, the facts, and in the exercise of discretion, to the extent of denying defendants' motion for a change of venue, and otherwise affirmed, without costs.

The plaintiff, an employee of third-party defendant J & L Windows, fell from a ladder while installing a window in defendants' apartment building located in Westchester County. The plaintiff was taken to Westchester County Hospital where he was treated for his injuries suffered from the fall. This action was commenced by the plaintiff in the Supreme Court, New York County, where the defendants' principal place of business is located.

In connection with this appeal, the plaintiff requests leave of this court to file a supplemental record on appeal. To the extent that the plaintiff's proposed supplemental record is comprised wholly of information not available to the nisi prius court for its consideration, the motion is denied. (Broida v. Bancroft, 103 A.D.2d 88, 478 N.Y.S.2d 333 [2d Dept 1984]. In turn, the defendants and the third-party defendant have moved to strike matter from the plaintiff's brief which is similarly dehors the record. This court is limited to a review of facts and information contained in the record and that which may be judicially noticed (Broida, supra ). The portions of plaintiff's reply brief that defendants request stricken fall into neither of these categories, therefore, the defendants' motion to strike is granted. Thus, in deciding the instant appeal, we do not take into consideration information contained within plaintiff's reply brief that is outside of the record.

Generally, the venue of a transitory action lies in the county where the cause of action arose. (Slavin v. Whispell, 5 A.D.2d 296, 171 N.Y.S.2d 892 [1st Dept 1958]. This rule is predicated on the notion of convenience for trial witnesses to be present at trial. (Boriskin v. Long Island Jewish-Hillside Medical Center, 85 A.D.2d 523, 444 N.Y.S.2d 618 [1st Dept 1981]. The rule, however, is not inflexible and may be outweighed by other considerations that favor a different venue for the matter to be tried. (Schneeweiss v. Pelkey, 138 A.D.2d 271, 525 N.Y.S.2d 846 [1st Dept 1988].

In a motion for change of venue under CPLR 510(3), the movant has the burden of showing that the convenience of material witnesses would be better served by such a change. (Stavredes v. United Skates, 87 A.D.2d 502, 447 N.Y.S.2d 478 [1st Dept 1982]. There...