The Appellate Division found that Supreme Court improvidently exercised its discretion in granting defendants' motion, and reversed. Defendants failed to show the existence of material witnesses who would be inconvenienced and the substance of their testimony, pursuant to CPLR 510[3]. In fact, defendants did not identify any proposed nonparty witnesses and merely claimed, without any evidentiary support, that material witnesses would be inconvenienced by having to travel to Bronx County. The presumption that a witness will be inconvenienced merely because the courthouse is in a different county is unwarranted, and while the county of occurrence is a factor to be considered, defendants still had the burden of showing the inconvenience that would be sustained by the witnesses if required to testify in Bronx County.
Tawiah v. McNiff, NY Slip Op 02374 (1st Dep't April 20, 2021)
