Sellars v. Tubbs

Order unanimously reversed on the law with costs and motion granted. Memorandum: Supreme Court erred in denying defendant Tubbs’ motion for a change of venue from Bronx County to Erie County and instead sua sponte changing venue to New York County, the county in which plaintiffs reside. Plaintiffs were not entitled to the relief granted by the court because they failed to cross-move for a change of venue (see, Kelson v Nedicks Stores, 104 AD2d 315; see also, Franklin Traffic Serv. v Helmer’s Fuel & Trucking, 142 AD2d 936). Plaintiffs merely asserted in opposition to defendant’s motion that an…