Lumbermen's Mutual Casualty Co. v. Toms

—Order unanimously reversed on the law with [876] costs and motion granted. Memorandum: Supreme Court erred in sua sponte changing venue to a forum neither designated nor requested by either party (see, Agway, Inc. v Kervin, 188 AD2d 1076; Sellars v Tubbs, 171 AD2d 1025; Nixon v Federated Dept. Stores, 170 AD2d 659, 660; Kelson v Nedicks Stores, 104 AD2d 315, 316). In support of his motion to change venue to Monroe County, defendant presented evidence to demonstrate that the causes of action arose in Monroe County and that most of the material witnesses reside in Monroe County (CPLR 510 [3]). Because plaintiff submitted no evidence in opposition to defendant’s motion, Supreme Court should have granted the motion. (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J.—Change of Venue.) Present—Den-man, P. J., Balio, Lawton, Doerr and Boehm, JJ.