MacMaster v. Sardina

Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Mem *1133 orandum: Supreme Court erred in summarily denying the motion of defendant Sardina to change the venue of the action from New York County to Erie County pursuant to CPLR 510 (1) on the ground that plaintiff was not a resident of New York County at the time the action was commenced (see, CPLR 503 [a]). In light of the conflicting averments proffered by the respective parties regarding plaintiff’s residence, we are unable to determine, on the record before us, whether plaintiff resided in New York County when the action was commenced. Accordingly, we remit the matter to Supreme Court for a hearing to determine the issue of plaintiff’s residence (see, Cerniglia v Combes, 157 AD2d 499 ) and whether defendant is entitled to a change of venue.

Finally, we do not address defendant Sardina’s contention that he was entitled to a change of venue pursuant to CPLR 510 (3). That issue is raised for the first time on appeal and, therefore, is not properly before us. (Appeal from Order of Supreme Court, Erie County, McGowan, J. — Reargument.) Present — Green, J. P., Pine, Balio, Boehm and Davis, JJ.