Gomez v. Cypser

Gomez v Cypser (2023 NY Slip Op 01060) Gomez v Cypser 2023 NY Slip Op 01060 Decided on February 28, 2023 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 and Entered: February 28, 2023 Before: Kern, J.P., Oing, Kennedy, Mendez, Pitt-Burke, JJ. Index No. 800366/22E Appeal No. 17419 Case No. 2022-04328 [*1]Jose Gomez, Plaintiff-Appellant, v Rudy J. Cypser et al., Defendants-Respondents. Hill & Moin LLP, New York (Cheryl R. Eisberg Moin of counsel), for appellant. Miranda Slone Sklarin Verveniotis LLP, Elmsford (Richard S. Sklarin of counsel), for respondents. Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered September 14, 2022, which granted defendants' motion to change venue from Bronx County to Westchester County, unanimously reversed, without costs, and the motion denied. Supreme Court should have denied defendants' motion to change venue from Bronx County to Westchester County because it was untimely made. Defendants have a reasonable excuse for their failure to make a timely demand to change venue. They learned of plaintiff's Westchester address on April 5, 2022, when they received plaintiff's medical authorizations and a copy of the Aided report, and made a prompt demand to change venue the day after, on April 6, 2022 (see Herrera v R. Conley Inc., 52 AD3d 218 [1st Dept 2008]). However, pursuant to CPLR 511(b), defendants had until April 21, 2022, 15 days after service of their demand, to make the motion. Defendants' motion made on April 26, 2022, 20 days after the demand, is untimely and should have been denied. Defendant did not move within the strict time limits provided by the statute and failed to offer any explanation for the delay (see Martirano v Golden Wood Floors Inc., 137 AD3d 612 [1st Dept 2016]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: February 28, 2023