In Frontier Ins. Co. In Rehabilitation v. Big Apple Roofing Co, Inc. , Frontier Insurance (Frontier) had issued performance bonds to a non-party in connection with various construction projects, including one involving a Manhattan high school.
Big Apple Roofing Company (BARC) agreed to indemnify Frontier in the event the non-party failed to complete the construction projects.
When a default occurred, Frontier filed its lawsuit in Sullivan County Supreme Court. Unhappy with that choice of forum, BARC asked the court to transfer the case to New York County, based upon the inconvenience that Sullivan County presented BARC's witnesses.
When the Sullivan County Supreme Court granted BARC's venue-change request, Frontier appealed to the Appellate Division, Third Department.
The AD3 held that in order to grant a litigant this kind of relief, the party seeking a case's relocation "must assert the names and addresses of the witnesses, the substance and materiality of their expected testimony on the issues presented, their willingness to testify and the manner in which they will be inconvenienced." Because BARC failed to name all of its witnesses and neglected to contact them to determine their willingness to testify, the AD3 was of the opinion that BARC's request had been improvidently granted.
Clearly, this was one BARC that had no bite.
For a copy of the Appellate Division's decision, please use this link: Frontier Ins. Co. In Rehabilitation v. Big Apple Roofing Co, Inc.