Supreme Court

DECISION AND ORDER

Defendant/husband moves by notice of motion for a change of venue pursuant to CPLR 503(a), changing the venue from Supreme Court, Nassau County to Supreme Court, Suffolk County.

On April 28, 2009, plaintiff commenced the instant action by filing and serving a Summons with Notice in Supreme Court, Nassau County.

Defendant's attorney affirms that the marital residence is in Suffolk County, that the plaintiff and children of the marriage still reside in the marital residence, the assets of the marriage are located in Suffolk County, and that the marriage took place in Suffolk County. The attorney states that the defendant's permanent residence is in the County of Suffolk at the marital home. In support, defendant produces pharmacy records dated April 15, 2009 showing defendant's residence as that of the marital residence. The attorney also states that Nassau County is an inconvenient venue as material witnesses are not located in Nassau County.

In opposition, plaintiff states that at the time the action was commenced defendant was residing in the County of Nassau, in Massapequa, New York. Plaintiff produces a police incident report dated April 14, 2009 which indicates defendant's residence to be in Nassau County. Plaintiff also opposes the application on the grounds that no sworn affidavit of defendant was submitted to the court in support of the motion, only an attorney affirmation.

In reply, defendant states that proof of defendant's residency is based on his legal address, not a police report which, upon information and belief, the plaintiff herself supplied the address information to the police. Additionally, no permanent change of address has been filed with the department of motor vehicles.

Upon the foregoing, the decision of the court is as follows:

Defendant's motion to change venue is DENIED. Defendant has failed to attach an affidavit duly sworn to by a person with actual knowledge (See generally, McDermott v. McDermott, 267 A.D. 171). The affidavit before the court on this motion is by an attorney who has "information" but no personal knowledge of defendant's residence (See, Pickard v. Krugger, 74 Misc. 2d 618, 619.

Furthermore, papers supporting a motion for change of venue for the convenience of witnesses must be ample to demonstrate that convenience, and must include: (a) an affidavit of merits; (b) names, addresses and occupations of witnesses, showing that the county where trial is desired would serve their convenience; (c) a showing that the party has told counsel what he expects to prove by such witnesses and that counsel has advised the party that they are necessary and material on trial, and (d) affidavits disclosing the substance of the proposed witnesses' testimony and showing how it is material (Searing v. Randall Cadillac Corp., 3 Misc. 2d 594). Defendant has wholly failed to provide the court with this documentation.

This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied.