In this reinsurance coverage case in a New York court, certain defendant reinsurers made a motion for a change of venue under NY CPLR 510 (2) on the ground that "an impartial trial could not be had" based on the fact that plaintiffs' former lead counsel, who was scheduled to be a fact witness, had retired from law firm practice and was now a judge of that same court's Commercial Division. The New York court denied the motion, and the reinsurers appealed.
On appeal, the New York appellate court noted that the lower court correctly determined that the reinsurers' motion for a change of venue was untimely, in that they waited "until the eve of trial," after plaintiffs' former counsel's was designated a judge of the court's Commercial Division, which was nine months after he was first designated as a judge of the court. The court noted that all of the arguments raised by the reinsurers in support of the venue change when he was appointed to the Commercial Division existed at the time he was first appointed as judge of the court.
Noting that to succeed on a CPLR 510(2) motion, a movant must demonstrate by factual evidence that there is a strong possibility that an impartial trial cannot be had in the venue. But the New York appellate court concluded that the reinsurers' arguments consisted not of factual evidence, but of conclusory allegations, beliefs, and suspicions. The court noted that "[t]here 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." Thus, the court affirmed the lower court's denial of the reinsurers' motion.
U.S. Fidelity & Guaranty Co. v. American Re-Insurance Co., No. 604517/02 (N.Y. App. 1st Dep't Dec. 22, 2016).
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