Vilches v. Guadagno

Vilches v Guadagno (2015 NY Slip Op 00977)

Vilches v Guadagno

2015 NY Slip Op 00977

Decided on February 5, 2015

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 February 5, 2015
Acosta, J.P., Renwick, Feinman, Clark, Kapnick, JJ.

14166N 153368/13

[*1] Ashley Vilches, Plaintiff-Appellant,

v

Charles Thomas Guadagno, Defendant-Respondent.

Pollack, Pollack, Isaac & De Cicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Steven P. Schultz, Gansevoort (J. David Burke of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered May 6, 2014, which granted defendant's motion to change venue from New York County to Albany County, unanimously reversed, on the law, without costs, and the motion denied, without prejudice to renewal after plaintiff's compliance with defendant's discovery demands.

Defendant failed to contact purported material witnesses to determine if they were willing to testify, the substance of their testimony, or the manner in which they will be inconvenienced if they must testify in New York County. Defendant's entire motion is based solely on his counsel's conclusory affirmation. Thus, defendant has failed to fully establish entitlement to a change of venue pursuant to CPLR 510(3) (see Gissen v Boy Scouts of Am., 26 AD3d 289, 290-291 [1st Dept 2006]; Hernandez v Rodriguez, 5 AD3d 269, 269-270 [1st Dept 2004]). Defendant's assertion that his insufficient showing resulted from plaintiff's failure to provide defendant with HIPAA and school authorizations permitting him to contact these witnesses is not supported by any documentation, and defendant has not explained why he did not seek to compel such discovery prior to making the motion.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 5, 2015

CLERK