
    Dean Frangos, with Power of Attorney by Carol Frangos, et al., Appellants, v Town of Niagara, Respondent.
    [762 NYS2d 330]
   Appeal from an order of Supreme Court, Erie County (Rath, Jr., J.), entered July 8, 2002, which, inter alia, granted defendant’s motion seeking a discretionary change of venue.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed in the exercise of discretion, without costs, the motion is denied and the cross motion is granted.

Memorandum: Plaintiffs appeal from an order granting defendant’s motion seeking a discretionary change of venue to Niagara County and denying plaintiffs’ cross motion to retain venue in Erie County. Defendant never moved to change venue as a matter of right (see CPLR 510 [1]; 511 [b]), and thus forfeited its rights in that respect. Our standard of review on this appeal “is not whether * * * Supreme Court abused its discretion, but instead, whether such discretion was exercised in a provident manner” (O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 172 [1995]), and here we conclude that the court improvidently exercised its discretion in granting the motion. Defendant failed to meet its burden of establishing the requisite criteria to warrant a change of venue based on the convenience of material witnesses (see CPLR 510 [3]; O’Brien, 207 AD2d at 172-173). We therefore reverse the order, deny defendant’s motion and grant plaintiffs’ cross motion. Present — Pigott, Jr., P.J., Pine, Hurlbutt, Burns and Lawton, JJ.  