Narvaez v. Sammartino , 154 A.D.3d 500 ( 2017 )

Narvaez v Sammartino (2017 NY Slip Op 07187)

Narvaez v Sammartino

2017 NY Slip Op 07187

Decided on October 12, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 12, 2017
Tom, J.P., Renwick, Andrias, Singh, Moulton, JJ.

4657N

[*1] Jose Narvaez, as Administrator of the Estate of Rosa Maria Sinchi, etc., Plaintiff-Respondent,

v

Thomas M. Sammartino, et al., Defendants-Appellants.

Picciano & Scahill, P.C., Bethpage (Andrea E. Ferrucci of counsel), for appellants.

Omrani & Taub, P.C., New York (Anne Marie Caradonna of counsel), for respondent.

Order, Supreme Court, Bronx County (Lizbeth González, J.), entered December 23, 2016, which, upon renewal, reversed a prior order, entered on default, granting defendants' motion to change venue from Bronx County to Suffolk County, and denied defendants' motion, unanimously affirmed, without costs.

The motion court properly exercised its discretion under CPLR 2001 in granting plaintiff's motion to renew, as the record shows that on the prior motion, plaintiff's opposition was not considered due to counsel's inadvertent failure to comply with the court's part rules. Counsel's error did not cause significant prejudice, and plaintiff has been ordered to reimburse defendants for any resulting costs and fees incurred (see CPLR 2001; DePompo-Seff v Genovese Drug Stores, Inc., 13 AD3d 109 [1st Dept 2004]).

Venue was properly laid in Bronx County, as plaintiff resided there when the complaint was filed (see CPLR 503[a]; Cardona v Aggressive Heating, 180 AD2d 572, 573 [1st Dept 1992]). Defendants failed to show that a change of venue was warranted, as they failed to identify any material witnesses residing in Suffolk County, explain how they will be inconvenienced without a change of venue, or disclose the substance and materiality of their testimony (see Jacobs v Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d 299, 299-300 [1st Dept 2004]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 12, 2017

CLERK