Appellate Division of the Supreme Court of New York, 1982

Burch v. Phillips

Appellate Division of the Supreme Court of New York · Decided June 1, 1982

88 A.D.2d 896; 450 N.Y.S.2d 600; 1982 N.Y. App. Div. LEXIS 17223

Cases that cite this one

7 later published cases cite this decision.

Berberich v. York Scaffold Equipment Corp. (Appellate Division of the Supreme Court of New York 1991)
Allen v. Morningside Acquisition I, LLC (Appellate Division of the Supreme Court of New York 2022)
Rodriguez v. Wilson (Appellate Division of the Supreme Court of New York 1994)
Johnson v. Greater New York Conference of Seventh Day Adventist Church (Appellate Division of the Supreme Court of New York 1992)
Kaplansky v. Associated YM-YWHA's of Greater New York, Inc. (Appellate Division of the Supreme Court of New York 1989)
Franklin Traffic Service, Inc. v. Helmer's Fuel & Trucking, Inc. (Appellate Division of the Supreme Court of New York 1988)
Arbel v. Turgeon Restaurants of Niagara Falls, Inc. (Appellate Division of the Supreme Court of New York 1986)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

— In an action to recover damages for personal injuries, defendant Textron, Inc., appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated July 7, 1981, which, inter alia, denied its motion to change the venue of this action to Greene County and granted the cross motion of the plaintiff to change venue to Suffolk County. Order modified (1) by deleting the first and second decretal paragraphs and substituting therefor provisions granting the motion of Textron, Inc., and denying the cross motion of plaintiff, and (2) by changing the word “Suffolk” in the third and fourth decretal paragraphs to the word “Greene”. As so modified, order affirmed, with $50 costs and disbursements to defendant Textron. The summons in this action states that the basis of the selection of Kings County as the venue of this personal injury negligence action is plaintiff’s residence in that county. The record establishes that at the time the action was commenced plaintiff resided in Greene County, not Kings County, and that plaintiff’s alleged residence in Kings occurred, if at all, after commencement of this action. Venue in Kings County was therefore improper (see CPLR 503, subd [a]). Defendant Textron did not serve a timely demand for a change of venue under CPLR 511 (subds [a], [b]) and accordingly it waived its prerogative to obtain a change of venue as of right (see Matter ofD. M. C. Constr. Corp. v Nash Steel Corp., 70 AD2d 635, 637, app dsmd 49 NY2d 1040). Its motion was therefore addressed to the discretion of the court on the ground specified in CPLR 5Í0 (subd 3). In our opinion Special Term improvidently exercised its discretion in denying defen*897dant Textron’s motion to change venue to Greene County where the accident happened, where two of the defendants reside, where plaintiff was hospitalized after the accident, where the initial treating physician practices and where plaintiff herself resided for a period of time after the accident, and in granting plaintiff’s cross motion to change venue to Suffolk County where she resided before the accident and where she has now resumed residence. Damiani, J. P., Mangano, Gibbons and Boyers, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.