Xhika v Rocky Point Union Free Sch. Dist.,

___ AD3d ___, 2015 NY Slip Op 00874 [2d Dept., 2015]

Even a specific statutory direction as to venue can be overridden by the convenience of material witnesses, but only when a sufficient showing is actually made. This case is an example of a movant who got it right.

The required showing on a motion for a change of venue based on the convenience of witnesses is well established. There are four elements: First, the names, addresses and occupations of the prospective witnesses must be stated. Second, the facts to which the proposed witnesses will testify at the trial must be stated, so that the court may judge whether the proposed evidence of the witnesses is material and necessary. Third, it must be shown that the witnesses for whose convenience a change of venue is sought are in fact willing to testify. Fourth, there must be a showing as to how the witnesses in question would in fact be inconvenienced in the event a change of venue were not granted. (O’Brien v Vassar Bros. Hosp., 207 AD2d 169 [2d Dept., 1995]. Read More