2019 WL 3938571 

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

Coluck Incorporated, appellant, 

v. 

SEM Security Systems, Inc., respondent, et al., counterclaim defendants. 

2019–00800Index No. 611867/18 

August 21, 2019April 26, 2019 

Attorneys and Law Firms 

Kirschenbaum &  Kirschenbaum, P.C., Garden City, N.Y. ( Kenneth Kirschenbaum of  counsel), for appellant.Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. ( Michael Frascarelli and  Richard M. Mahon II of  counsel), for respondent. 

WILLIAM F. MASTRO, J.P. ROBERT J. MILLER BETSY BARROS LINDA CHRISTOPHER, JJ. 

DECISION & ORDER 

*1 In an action to recover damages for breach of  contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered January 8, 2019. The order granted the defendant's motion, in effect, pursuant to  CPLR 510(1) and (3) to change venue of the action from Nassau County to Orange County. 

ORDERED that the order is reversed, on the  law, with costs, the defendant's motion, in effect, pursuant to  CPLR 510(1) and (3) to change venue of the action from Nassau County to Orange County is denied, and the Clerk of the Supreme Court, Orange County, is directed to deliver to the Clerk of the Supreme Court, Nassau County, all papers filed in this action and certified copies of all minutes and entries ( see  CPLR 511[d] ). 

By summons and complaint dated August 31, 2018, the plaintiff commenced this action in the Supreme Court, Nassau County, alleging that the defendant owed the plaintiff approximately $159,000 pursuant to the terms of a  contract. The defendant interposed an answer with counterclaims dated October 1, 2018. The defendant later served a demand to change venue, dated October 15, 2018, and subsequently moved, in effect, pursuant to  CPLR 510(1) and (3) to change venue of the action to Orange County. In the order appealed from, the court granted the defendant's motion and directed that the action be transferred to Orange County. The plaintiff appeals. We reverse. 

That branch of the defendant's motion which was to change venue based on the contention that the county designated was improper ( see  CPLR 510[1] ) was untimely since no demand to change venue was served with the answer or before the answer had been served ( see  CPLR 511[a], [b];  Byron v. Spektor, 266 A.D.2d 253, 253;  Montoya v. Brown, 233 A.D.2d 374, 374;  Newman v Physicians' Reciprocal Insurers, 204 A.D.2d 210, 210). While in certain limited circumstances a court confronted with an untimely motion for a change of venue may exercise its discretion to grant the motion ( see  Philogene v. Fuller Auto Leasing, 167 A.D.2d 178, 179), the defendant in this case did not present an adequate basis to support such an exercise of discretion ( see  Herrera v. R. Conley Inc., 52 AD3d 218, 218;  Byron v. Spektor, 266 A.D.2d at 253;  Montoya v. Brown, 233 A.D.2d at 374;  Newman v Physicians' Reciprocal Insurers, 204 A.D.2d at 210). Accordingly, that branch of the defendant's motion which was, in effect, pursuant to  CPLR 510(1) to change venue should have been denied. 

Furthermore, the defendant failed to demonstrate that a change of venue was warranted pursuant to  CPLR 510(3). “A party moving for a discretionary change of venue pursuant to  CPLR 510(3) has the burden of demonstrating that the convenience of material witnesses and the ends of justice will be promoted by the change” ( Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d 927, 928;  see  CPLR 510[3];  McManmon v. York Hill Hous., Inc., 73 AD3d 1137, 1138). “In so doing, the moving party must set forth (1) the names, addresses, and occupations of the prospective witnesses, (2) the facts to which the witnesses will testify at trial, so that the court may judge whether the proposed evidence is necessary and material, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed” ( Ambroise v United Parcel Serv. of Am., Inc.,143 AD3d at 928;  see  M.I. v. Trinity–Pawling Sch., 125 AD3d 615, 615–616). Here, the defendant's submissions satisfied none of these criteria ( see  Bikel v Bakertown Realty Group, Inc., 157 AD3d 924, 925). Accordingly, that branch of the defendant's motion which was, in effect, pursuant to  CPLR 510(3) to change venue should have been denied. 

*2 MASTRO, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur. 

ENTER: 

Aprilanne Agostino 

Clerk of the Court 

All Citations 

--- N.Y.S.3d ----, 2019 WL 3938571, 2019 N.Y. Slip Op. 06192