Minenko v. Swinging Bridge Camp Grounds of N.Y., Inc.

• Decision Date: 22 November 2017
• Docket Number: 524959.
• Citation: 155 A.D.3d 1413,63 N.Y.S.3d 914 (Mem)
• Parties: Iourii MINENKO et al., Appellants, v. SWINGING BRIDGE CAMP GROUNDS OF N.Y., INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1413

63 N.Y.S.3d 914 (Mem)

Iourii MINENKO et al., Appellants,

v.SWINGING BRIDGE CAMP GROUNDS OF N.Y., INC., et al., Respondents.

524959.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 22, 2017.

Law Office of Olga Vinogradova, PC, New York City (Olga Vinogradova of counsel), for appellants.

Drew, Davidoff & Edwards Law Offices, LLP, Monticello (Brian T. Edwards of counsel), for respondents.

Before: EGAN JR., J.P., LYNCH, ROSE, AARONS and PRITZKER, JJ.

ROSE, J.

Appeal from an order of the Supreme Court (Schick, J.), entered July 11, 2016 in Sullivan County, which granted defendants' motion to change venue from Kings County to Sullivan County.

Plaintiffs commenced this action in Kings County, where they reside, asserting causes of action for, among other things, deceptive business practices based upon their exclusion from camping sites that they rented from defendants in Sullivan County. Following joinder of issue, defendants moved in Sullivan County to change venue from Kings County to Sullivan County on the basis that the material witnesses who would testify in this action are all located in Sullivan County (see CPLR 510[3] ). Plaintiffs opposed the motion, alleging, among other things, that the motion should have been brought in Kings County. Ultimately, Supreme Court granted defendants' motion to change venue, and this appeal ensued.

It is well-settled that a motion to change venue on a discretionary ground, such as the convenience of material witnesses pursuant to CPLR 510(3), "must be made in the county in which the action is pending, or in any county in that judicial district, or in any adjoining county" ( Schwartz v. Yellowbook, Inc., 118 A.D.3d 691, 692, 986 N.Y.S.2d 840 [2014] ; see CPLR 2212[a] ; Rubens v. Fund, 23 A.D.3d 636, 637, 805 N.Y.S.2d 640 [2005] ; Matter of D.M.C. Constr. Corp. v. Nash Steel Corp., 70 A.D.2d 635, 637, 416 N.Y.S.2d 649 [1979], appeal dismissed 49 N.Y.2d 1040, 429 N.Y.S.2d 636, 407 N.E.2d 480 [1980] ; Wachunas v. Demas, 43 A.D.2d 979, 979, 352 N.Y.S.2d 505 [1974] ; see also Siegel, N.Y. Prac. § 124 at 223 – 224 [5th ed. 2011] ; Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 511 at 255–257; compare CPLR 511[b] ). Here, it is undisputed that the action is pending in Kings County and that Sullivan County is not in the same judicial district as Kings County nor is it an adjoining county. In light of this, we find that defendants failed to bring their motion in a proper county and, thus, Supreme Court should not have entertained the motion (see Schwartz v. Yellowbook, Inc., 118 A.D.3d at 692, ...