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Posted: December 31, 2016

That Non-Party Witness is a Commercial Division Judge Does Not Justify Change of Venue

On December 22, 2016, the First Department issued a decision in United States Fidelity & Guaranty Co. v. American Re-Insurance Co., 2016 NY Slip Op. 08609, holding that the fact that a proposed non-party witness was a New York County Commercial Division justice did not warrant a change of venue to another county, explaining:

In this reinsurance coverage dispute, defendants have moved, on the eve of trial, for a change of venue pursuant to CPLR 510(2) on the ground that an impartial trial could not be had. Defendants based this motion on the fact that plaintiffs’ former lead counsel, who was scheduled to be a fact witness, had retired from law firm practice and become a Justice of the Supreme Court, Commercial Division. In the first instance, we note that the motion court correctly determined that defendants’ motion for a change of venue was untimely, in that they waited nine months after his designation as an Acting Justice of the Supreme Court, and until the eve of trial; all of the arguments raised by defendants in support of venue change existed when he was appointed a Justice to New York County at that time, not when he was later appointed to the Commercial Division within the same county.

To succeed on a CPLR 510(2) motion, a movant must adduce factual evidence demonstrating that there is a strong possibility that an impartial trial cannot be had in the venued county.

Here, defendants’ arguments consist not of factual evidence, but of conclusory allegations, beliefs, suspicions, and the repeated invocation of the phrase appearance of impropriety. The evidence in the record demonstrates that the motion court providently exercised its discretion in denying defendants’ motion. There is no personal relationship between the trial judge and the judge-witness and no personal relationship between the judge-witness and the party. The mere fact that the jury may discover a nonparty witness is a judge is not enough to prejudice a defendant where a plaintiff does not seek to exploit the witness’s status to enhance his credibility. Moreover, the same concerns would exist, no matter in what venue the case is tried.

(Internal quotations and citations omitted).

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