OBAS v. GRAPPELL

Ordered that the order is affirmed, with costs.

A demand to change venue based on the designation of an improper county ( see CPLR 503 [a]; 510 [1]) must be "served with the answer or before the answer is served" (CPLR 511 [a]). Here, since the defendants failed to serve a timely demand for a change of venue to Nassau County, and failed to make a motion for that relief within the statutory 15-day period ( see CPLR 511 [b]), they were not entitled as of right to a change of venue to Nassau County ( see Joyner-Pack v Sykes, 30 AD3d 469; Harleysville Ins. Co. v Ermar Painting Contr., Inc., 8 AD3d 229, 230; Runcie v Cross County Shopping Mall, 268 AD2d 577). Thus, their motion "became one addressed to the court's discretion" ( Callanan Indus, v Sovereign Constr. Co., 44 AD2d 292, 295; see Pittman v Maker, 202 AD2d 172, 175). Moreover, the defendants failed to move promptly for a change of venue even after ascertaining the plaintiff's alleged true residence ( see Acosta v Hadjigavriel, 6 AD3d 636, 637; Runcie v Cross County Shopping Mall, supra), and the record does not establish that the plaintiff misled the defendants or sought to manipulate the venue rules ( see Joyner-Pack v Sykes, supra; Koschak v Gates Constr. Corp., 225 AD2d 315, 316; Pittman v Maker, supra at 174). Under the circumstances, the Supreme Court providently exercised its discretion in denying the motion.