Zinker v. Zinker, 185 A.D.2d 698 (N.Y. App. Div. 4th Dep't 1992). · Go Syfert
Zinker v. Zinker, 185 A.D.2d 698 (N.Y. App. Div. 4th Dep't 1992). Cases Citing This Book View Copy Cite
13 citation events (5 in the last 25 years) across 1 distinct court.
Cited for
At page 698 Determining grounds for change of venue motion3 citing cases“We conclude, however, that Supreme Court abused its discretion by granting defendant’s motion for a change of venue to Rockland County.”the opinion's own words at *698
  • Rowland v. Slayton, 2019 NY Slip Op 1007 (N.Y. App. Div. 4th Dep't 2019).published
    Hosp ., 207 AD2d 169, 172-173 [2d Dept 1995]; Zinker v Zinker , 185 AD2d 698, 698 [4th Dept 1992]), defendant failed to establish that the prospective witnesses would be inconvenienced if the change of venue were not granted ( cf. Seguin v…
  • Cellino & Barnes, P.C. v. Law Off. of Christopher J. Cassar, 140 A.D.3d 1732 (N.Y. App. Div. 4th Dep't 2016).published
    We conclude that the court did not abuse its discretion in denying the motion inasmuch as defendants failed to meet their burden of proving that “the convenience of material witnesses and the ends of justice [would] be promoted by the chan…
  • Frontier Ins. v. Big Apple Roofing Co., 50 A.D.3d 1239 (N.Y. App. Div. 3d Dep't 2008).published
    Furthermore, defendant Beqir Marku’s submissions regarding his need for a change of venue due to health problems do not establish that a trial in Sullivan County will be more detrimental to his health than a trial in New York County (see L…
At page 699 “We conclude that Supreme Court gave "excessive weight” to defendant’s alleged health problems (Wilson v Sponable, 77 AD2d 799, 800).”1 citing casethe opinion's own words at *699
  • Palermo v. White, 133 A.D.3d 834 (N.Y. App. Div. 2d Dep't 2015).published
    Furthermore, the defendants failed to establish that Krauss is unable to travel to Kings County due to his health (see Zinker v Zinker, 185 AD2d 698, 699 [1992]; Hoyt v Le Bel, 120 AD2d 973, 974 [1986]; cf. DeGregorio v DeGregorio, 251 AD2…
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Dorothy A. Zinker, Appellant-Respondent
v.
Diane G. Zinker
Appellate Division of the Supreme Court of the State of New York.
Jul 14, 1992.
Published opinion
185 A.D.2d 698
1992 N.Y. App. Div. LEXIS 9257
Cited by 12 opinions  |  Published

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court did not err by dismissing without prejudice defendant’s motion for summary judgment. Once Supreme Court determined that a change of venue was appropriate, it properly relegated all motions to the transferee court (Rosenblatt v Sait, 34 AD2d 238, 239).

We conclude, however, that Supreme Court abused its discretion by granting defendant’s motion for a change of venue to Rockland County. Defendant failed to meet her burden of proving that "the convenience of material witnesses and the ends of justice will be promoted by the change” (CPLR 510 [3]). To demonstrate entitlement to a discretionary change of venue, the moving party must submit "the names, addresses and occupations of the prospective witnesses; a full and fair statement of what the moving party expects to prove by the witnesses; the facts to which the prospective witnesses will testify; and the basis for the moving party’s belief that the witnesses will testify as stated” (Hurlbut v Whalen, 58 AD2d 311, 316, Iv denied 43 NY2d 643; see also, Greene v Hillcrest Gen. Hosp., 130 AD2d 621). The moving party must also demonstrate that the matter will not be unduly delayed by transfer to another county (see, Thorner-Sidney Press v Merling Marx & Seidman, 115 AD2d 328; Edwards v Lambería, 42 AD2d 1003). The convenience of the parties is not normally considered (Hoyt v Le Bel, 120 AD2d 973), except when the inconvenience relates to a party’s health (see, Messinger v Festa, 94 AD2d 792). The moving party must demonstrate by competent evidence his inability to travel (see, Hoyt v Le Bel, supra, at 974).

Defendant’s submissions to Supreme Court in support of her motion were woefully deficient. Defendant admitted that she[*699] works as a full-time teacher, yet she submitted conclusory allegations that back surgery she had in 1990 prevents her from defending plaintiffs action in Monroe County. An unsworn letter from defendant’s physician is incompetent to prove that defendant is unable to travel. We conclude that Supreme Court gave "excessive weight” to defendant’s alleged health problems (Wilson v Sponable, 77 AD2d 799, 800). Moreover, defendant failed to prove that material witnesses reside in Rockland County and failed to address the issue of court congestion.

We, therefore, modify the order to deny defendant’s motion for a change of venue. We do not address the motion for summary judgment and defendant may, should she choose, resubmit her motion for summary judgment to Supreme Court, Monroe County. (Appeals from Order of Supreme Court, Monroe County, Calvaruso, J., for Patlow, J.—Change of Venue.) Present—Callahan, J. P., Pine, Balio, Lawton and Doerr, JJ.