U.S. Fid. & Guar. Co. v. Am. Re-Insurance Co., No. 604517/02, 2016 N.Y. App. Div. LEXIS 8457 (N.Y. App. Div., 1st Dep’t Dec. 22, 2016).
On the eve of trial in a reinsurance dispute, the reinsurers moved for a change of venue. The motion court denied the motion as untimely and the appellate court affirmed.
The basis for the change of venue motion, according to the court, was that an impartial trial could not be had because the cedent’s former lead counsel, who was scheduled to be a fact witness, became a judge in the same trial court (the New York Supreme Court, Commercial Division). In affirming the denial of the motion, the appellate court noted that the motion court correctly determined that the motion was untimely. According to the court, the motion was made nine months after the witness was designated as an acting Justice of the Supreme Court and until just before the trial, all the arguments made existed at that time, not when he was later appointed to the Commercial Division.
The appellate court also found that the motion was based on conclusory allegations. The court said that the record demonstrated that there was no personal relationship between the trial judge and the witness. The court also found that the jury’s discovery that the witness was a judge is not enough to prejudice the reinsurers where the cedent was not seeking to exploit the witness’s status to enhance his credibility