De Litta v. Milde , 52 A.D.2d 548 ( 1976 )

Order, Supreme Court, New York County, entered September 24, 1975, which granted the motion of defendants to transfer the venue of this action from New York County to Warren County, unanimously affirmed. Respondents shall recover of appellants $40 costs and disbursements of this appeal. The main plaintiff is a New Jersey resident and the sister of the individual defendant who 'lives in Warren County. In this personal injury action, the accident occurred in Warren County. No formal demand for change of venue was served with or before the answer, CPLR 511 (subd [a]), although it was done before the motion was made. The change was sought with due diligence when counsel for the defendants discovered that the claim of residence by plaintiff in New York County was specious. (CPLR 511, see McLaughlin, Supplementary Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, CPLR 511.) The answer having pleaded a separate defense with respect to residence of the parties and the place of the accident, there was no abuse of discretion in transferring venue. (CPLR 510; Callanan Ind. v Sovereign Constr. Co., 44 AD2d 292, 295.) In any event, CPLR 327 would apply. (See, also, Slavin v Whispell, 5 AD2d 296.) Concur— Kupferman, J. P., Birns, Silverman, Lane and Nunez, JJ.