
    Ralph Graham, Respondent, v. Raymond Ten Eyck, Appellant.
   Appeal from an order of the Supreme Court at Special Term, entered May 3, 1972 in Saratoga County, which denied the defendant’s motion, to strike the note of issue designating venue as Saratoga County and to have venue established in Warren County. Plaintiff, a resident of Saratoga, commenced an action against defendant, a resident of Warren County, for damages sustained as a result of an automobile accident that occurred in Saratoga County. The summons stated that trial was desired in Warren County, but the subsequent complaint placed the venue in Saratoga County. All further pleadings placed the venue in Warren County until plaintiff filed a note of issue in Saratoga County. Upon the motion to strike the note of issue and place the venue in Warren County, defendant contends plaintiff is estopped from denying that Warren County is the proper place of venue. With this contention we cannot agree. There is no showing -to what extent or in what manner plaintiff’s inconsistent conduct caused prejudice or detriment to defendant. Thus one of the essential elements of an estoppel is lacking (Village of Chester v. Kantod Park Assn., 13 A D 2d 709). The court below, in the proper exercise of its discretion, permitted the amendment of the summons and other pleadings and the action should remain upon the Trial Calendar in Saratoga County (CPLR 305, subd. [c]). Order affirmed, with costs. Herlihy, P. J., Greenblott, Cooke, Kane and Main, JJ., concur.  