Buterbaugh v. Del Pesce

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about November 1, 1989, which granted the motion of defendants Richard Del Pesce, Jr. and The Portfolio Edge, Inc. to change the venue of trial from Bronx County, as chosen by plaintiff, to Suffolk County, and denied plaintiff’s cross motion to retain venue in Bronx County, unanimously reversed, on the law, the facts and in the exercise of discretion, defendants’ motion is denied and plaintiff’s cross motion to retain venue in Bronx County is granted, without costs. Plaintiff Velma Buterbaugh alleges that on December 28, 1987, she was driving her car in The Bronx when she was suddenly struck by a car which failed to stop at a stop sign at the intersection of 177th Street and the Cross Bronx Service Road. The offending vehicle was alleged to have been negligently driven by the individual defendant Richard Del Pesce, Jr. and leased by another nonappealing defendant to defendant The Portfolio Edge, Inc., Del Pesce’s employer. Plaintiff 585 alleges that as a consequence she sustained serious personal injuries. Notwithstanding that plaintiff, because she did not reside in Bronx County, initially designated an improper venue, and defendants timely sought a change of venue pursuant to CPLR 510 (1), the court should have granted plaintiffs cross motion to retain venue in Bronx County for the convenience of material witnesses (Dickman v Stummer, 20 AD2d 611, 612; cf., United Credit Corp. v Le Roy Adventures, 61 AD2d 742). In failing to grant the cross motion to retain venue in Bronx County, the motion court erred, since plaintiff made the requisite showing for retaining venue in Bronx County by particularizing the testimony of six potential trial witnesses in sufficient detail (CPLR 510 [3]; Thomas v Small, 121 AD2d 622). All of these witnesses either resided or worked in Bronx County, and their convenience renders the situs of the accident a significant connection to Bronx County. Concur—Sullivan, J. P., Ross, Ellerin, Wallach and Smith, JJ.