Stratton v. Dueppengiesser

Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in denying plaintiffs’ motion pursuant to CPLR 510 (3) seeking to change venue from Wyoming County to Erie County. Plaintiffs failed to establish that the convenience of material witnesses and the ends of justice would be promoted by the change (see, CPLR 510 [3]). ‘While calendar congestion is certainly a factor to be considered in deciding a motion to change venue pursuant to CPLR 510 (subd 3) * * * it is not controlling” (A.M.I. Intl. v Pool Sales & Serv., 94 AD2d 890). In any event, the assertion of plaintiffs’ attorney that the action could be tried more expediently in Erie County is equivocal and based on hearsay, and thus is insufficient to establish calendar congestion (see, Ament v Church of Annunciation, 247 AD2d 843; Schapiro & Reich v Fuchsberg, 172 AD2d 1080, 1080-1081). (Appeal from Order of Supreme Court, Wyoming County, Notaro, J. — Venue.) Present — Pine, J. P., Wisner, Hurlbutt, Scudder and Kehoe, JJ.