(DOWNLOAD) "Matter Peter F. Vallone v. James M. Power Et Al." by Supreme Court of New York " Book PDF Kindle ePub Free
eBook details
- Title: Matter Peter F. Vallone v. James M. Power Et Al.
- Author : Supreme Court of New York
- Release Date : January 12, 1970
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
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[35 A.D.2d 655 Page 656] In our opinion, appellant, a resident of Queens County, faced with the necessity of presenting evidence to sustain his burden
of proof in support of his petition, selected that county, as was his right, as the venue of this proceeding. The controversy
in issue involves election districts in divers sections of Queens, Bronx and New York counties, which are included in the
21st Congressional District. Under the circumstances: the location of the counties involved and the county selected by petitioner
for the venue being the county wherein petitioner resides and wherein the controversy in part arose, it may not be said that
such selection was improper under the provisions of the applicable statute (CPLR, art. 5). In the interest of orderly procedure
with respect to a primary election controversy involving adjoining counties within the City of New York, lying in different
judicial districts and departments, venue should remain in the county rightfully selected by the party bearing the burden
of proof. The general rule here stated does not preclude a change of venue upon motion pursuant to statute (CPLR 510). At
bar, respondent Badillo made such motion predicated on the convenience of material witnesses and the ends of justice. However,
we find that he failed to sustain his burden of establishing the requisite factual basis for the motion on the grounds alleged
(Geneva Trust Co. v. Boston & Maine R. R., 212 App. Div. 695; Sanders v. Prescott, 234 App. Div. 899; Dairymen's League
Co-operative Assn. v. Brundo, 131 Misc. 548). The mere tabulation in a bill of particulars indicating that 80% of the alleged
irregularities occurred in Bronx County does not serve substantively to sustain the moving party's burden of proof. It may
also be noted that in this modern era, travel from one county to another within the City of New York may not be deemed, on
the facts of this case, so inconvenient as to warrant a change of venue within the same city (Luhrs v. Heim, 203 App. Div.
864; Mumford v. Cammann, 3 Caines 139). On the facts in this record, it may not be held that the convenience of material witnesses
and the ends of justice will be promoted by a change of venue in this proceeding. Accordingly, we find that the granting of
the motion was erroneous; it constituted an improvident exercise of discretion.