Creed v. United Hospital

Full title: CORA B. CREED et al., Respondents, v. UNITED HOSPITAL et al., Appellants

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 26, 1990

158 A.D.2d 654 (N.Y. App. Div. 1990)

551 N.Y.S.2d 952

Opinion

February 26, 1990

Appeal from the Supreme Court, Kings County (Bellard, J.).

Ordered that the appeals from the order dated October 5, 1988 are dismissed, as that order was superseded by the order dated March 2, 1989, made upon renewal and reargument; and it is further,

Ordered that the order dated March 2, 1989 is reversed insofar as appealed from, the order dated October 5, 1988 is vacated, the defendants' respective motions for a change of venue are granted, and the County Clerk, Kings County, shall deliver to the County Clerk, Westchester County, all papers filed in the action, and certified copies of all minutes and entries; and it is further,

Ordered that the defendants, appearing separately and filing separate briefs, are awarded one bill of costs.

It is well settled that, all other things being equal, a transitory action should be tried in the county in which the claim arose, absent cogent reasons warranting trial elsewhere (see, Jansen v Bernhang, 149 A.D.2d 468; Wolff v Friedman, 148 A.D.2d 448; McDonald v Southhampton Hosp., 133 A.D.2d 814; Thomas v Small, 121 A.D.2d 622). While the papers submitted by the defendants in support of the requested change of venue do not establish the existence of a preponderance of nonparty witnesses in Westchester County, they do demonstrate that the cause of action arose there, that the majority of parties and material employee witnesses reside and/or work there, that all relevant medical and hospital records are kept there, and that presumably less Trial Calendar congestion will be encountered there (see generally, Young Hee Kim v Flushing Hosp. Med. Center, 138 A.D.2d 252; Thomas v Small, supra; Chiappa v Macaluso, 96 A.D.2d 895). Conversely, the only nexus to Kings County is the plaintiffs' residence therein. Accordingly, under these circumstances, we conclude that the ends of justice will be promoted by the trial of the case in Westchester County. Mollen, P.J., Thompson and Brown, JJ., concur.

Mangano, J., concurs in part and dissents in part and votes to dismiss the appeal from the order dated October 5, 1988 and affirm the order dated March 2, 1989, insofar as appealed from, with the following memorandum: The plaintiffs properly designated the venue of the instant action in Kings County, since they resided there when the action was commenced (CPLR 503 [a]). Nevertheless, the majority is of the view that the Supreme Court improperly denied the defendants' motions to change venue from Kings County to Westchester County. I respectfully disagree.

A motion for a change of venue under CPLR 510 (3) is addressed to the sound discretion of the trial court, and absent an abuse or improvident exercise of that discretion, the court's determination will not be disturbed on appeal (see, Filler v Cornell Univ., 147 A.D.2d 610; McAdoo v Levinson, 143 A.D.2d 819; McDonald v Southhampton Hosp., 133 A.D.2d 814; Wecht v Glen Distribs. Co., 112 A.D.2d 891).

The majority admits that the papers submitted by the defendants in support of the requested change of venue do not establish the existence of a preponderance of nonparty witnesses in Westchester County. Indeed, of the four potential witnesses who allegedly will be inconvenienced by a trial in Kings County, one is a named defendant, i.e., Dr. Parker, and another, i.e., embryologist Ermine Ciaston, is an employee of one of the other defendants. It is well settled that the convenience of parties and their employees is not relevant to a determination of a change of venue motion under CPLR 510 (3) (see, D'Argenio v Monroe Radiological Assocs., 124 A.D.2d 541; Katz v Goodyear Tire Rubber Co., 116 A.D.2d 506, 507). In addition, the defendants failed to demonstrate that the other two witnesses were nonparty witnesses. In this regard, the facts at bar are distinguishable from those in Thomas v Small ( 121 A.D.2d 622) where venue was changed from Kings County to distant Clinton County based, inter alia, on the convenience of five material, nonparty witnesses who resided in Clinton County. Further, the defendants' papers fail to set forth (1) that the potential witnesses have been contacted and have agreed to testify, and (2) the nature of their anticipated testimony (Alexandre v Pepsi-Cola Bottling Co., 150 A.D.2d 742; Jansen v Bernhang, 149 A.D.2d 468; Ferrigno v General Motors Corp., 134 A.D.2d 479).

The fact that all relevant medical and hospital records are kept in Westchester County "demonstrates no real inconvenience since they could be mailed to the court" (D'Argenio v Monroe Radiological Assocs., supra, at 542).

While rural counties are slightly favored over urban ones by virtue of the fact they can afford the litigants a speedier trial (Jacobson v Leaseway of E.N.Y., 107 A.D.2d 798; Wecht v Glen Distribs. Co., 112 A.D.2d 891, supra; Thomas v Small, 121 A.D.2d 622, 624, supra), Westchester County does not, in my view, qualify as a rural county.

Accordingly, the order appealed from should be affirmed (see also, Feldman v North Shore Univ. Hosp., 157 A.D.2d 831).