United Community Ins. Co. v. Triboro Signal Station, Inc., 160 A.D.2d 1206, 555 N.Y.S.2d 210 (N.Y.A.D. 3 Dept., Apr 26, 1990) (NO. 59605)

Supreme Court, Appellate Division, Third Department, New York.
UNITED COMMUNITY INSURANCE COMPANY, as Subrogee of Fanell Bowl, Inc., et al.,Respondent,v.TRIBORO SIGNAL STATION, INC., Doing Business as Triboro Alarm, Appellant.

April 26, 1990.

 Insured's subrogee brought action to recover payment made to insured for damages to insured's property due to defendant's alleged breach of contract. Defendant moved for change of venue.   The Supreme Court, Albany County, Kahn, J., denied motion.   Defendant appealed.   The Supreme Court, Kane, J.P., held that trial court did not abuse its discretion in denying motion for change of venue.
 Affirmed.

West Headnotes
[1] Venue  24401k24 Most Cited Cases
Subrogation and assignment are not the same for purposes of determining venue based on residency of subrogee or assignee.  McKinney's CPLR 503(e), 503 comment.
[2] Venue  68401k68 Most Cited Cases
Defendant failed to sufficiently establish that convenience of material nonparty witnesses would be served and ends of justice promoted by change of venue from Albany County and, therefore, trial court did not abuse its discretion in denying motion for change of venue in action brought by insured's subrogee to recover payment made to insured for damages to insured's property due to defendant's alleged breach of contract.  McKinney's CPLR 510, subd. 3. **210 Kirschenbaum & Kirschenbaum (Kenneth Kirschenbaum, of counsel), Garden City, for appellant.
 Roemer & Featherstonhaugh (Denis R. Hurley, of counsel), Albany, for respondent.

 **211 Before KANE, J.P., and CASEY, MIKOLL, YESAWICH and  LEVINE, JJ.


 KANE, Justice Presiding.
 Appeal from an order of the Supreme Court (Kahn, J.), entered May 22, 1989 in Albany County, which denied defendant's motion for a change of venue.
 Plaintiff commenced this action as an insured's subrogee to recover, inter alia, payment made to the insured for damages to the insured's property due to defendant's alleged breach of contract.   Defendant appeals from the denial of its motion for a change of venue.
 [1] We affirm.   In doing so, we reject defendant's argument that subrogation and assignment are the same for purposes of determining venue based on residence (see, CPLR 503[e] ).  Pursuant to CPLR 503(e), an assignee's residence in an action for a sum of money only is that of the original assignor.   Assignment, however, is significantly different from subrogation (*1207 see, 6A Appleman, Insurance Law and Practice §  4053, at 134-136), with certain rights in the latter rooted in equitable considerations.   As such, we find nothing contained in the language or intent of CPLR 503(e) that necessarily equates subrogation with assignment in designating the parties' residence for purposes of venue (see, McLaughlin, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C503:5, at 17).
 [2] Moreover, we find no abuse of Supreme Court's discretion in denying the motion.   Defendant failed to sufficiently establish that the convenience of material nonparty witnesses would be served and the ends of justice promoted by the venue change sought (see, CPLR 510[3] ).
 Order affirmed, without costs.

 CASEY, MIKOLL, YESAWICH and LEVINE, JJ., concur.
555 N.Y.S.2d 210, 160 A.D.2d 1206
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