Opinion
2014-01-15
Jannie M. PEOPLES, etc., et al., appellants, v. Anuj VOHRA, etc., et al., respondents, et al., defendants.
Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y. (James M. Lane of counsel), for appellants. Santangelo, Benvenuto & Slattery, Roslyn, N.Y. (James W. Tuffin of counsel), for respondents Anuj Vohra, Eric Silva, Alan R. Lemerande, Jr., and Dulaya K. Santikul.
Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y. (James M. Lane of counsel), for appellants. Santangelo, Benvenuto & Slattery, Roslyn, N.Y. (James W. Tuffin of counsel), for respondents Anuj Vohra, Eric Silva, Alan R. Lemerande, Jr., and Dulaya K. Santikul.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Stephen C. Mandell of counsel), for respondent Lance M. Siegel.
Martin Clearwater & Bell LLP, New York, N.Y. (Stewart G. Milch, John J. Barbera, and Olimpio A. Russo of counsel), for respondents Maria T. Ranin–Lay, De Arellano Elizabeth Ann Ramirez, Orange Regional Medical Center, and Hudson Valley Hospital Physicians, PPLC.
Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Wayne M. Rubin of counsel), for respondents Firas Hamdi and Crystal Run Healthcare, LLP.
PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Steinhardt, J.), dated July 17, 2012, which granted the motion of the defendants Anuj Vohra, Eric J. Silva, Alan R. Lemerande, Jr., and Dulaya K. Santikul, the separate motion of the defendant Lance M. Siegel, and the separate motion of the defendants Maria T. Ranin–Lay, De Arellano Elizabeth Ann Ramirez, Orange Regional Medical Center, and Hudson Valley Hospital Physicians, PLLC, to transfer venue of this action from Kings County to Orange County pursuant to CPLR 510, and denied their cross motion to retain venue in Kings County.
ORDERED that the order is reversed, on the law, with one bill of costs payable to the plaintiffs by the respondents appearing separately and filing separate briefs, the motions to change venue of the action from Kings County to Orange County are denied, the cross motion is granted, and the Clerk of the Supreme Court, Orange County, is directed to deliver to the Clerk of the Supreme Court, Kings County, all papers filed in this action and certified copies of all minutes and entries ( seeCPLR 511[d] ).
In September 2010, Thannipulli Fernando (hereinafter the decedent) died intestate after being treated at the Orange Regional Medical Center in Middletown, New York. Subsequently, the Surrogate's Court, Orange County, granted the petition of the decedent's wife, the plaintiff Cynthia Fernando, to appoint her mother, the plaintiff Jannie M. Peoples, as the administrator of the decedent's estate. Peoples resided in a nursing home in Kings County. The plaintiffs then commenced this action by the filing of a summons and complaint in Kings County, seeking to recover damages, inter alia, for medical malpractice.
Various defendants filed motions to transfer venue from Kings County to Orange County pursuant to CPLR 510. The moving defendants argued, in effect, that other than Peoples' residence, there was no nexus between this case and Kings County. The plaintiffs opposed the motion and cross-moved to retain venue in Kings County. In opposition to the cross motion, several defendants argued that the plaintiffs had “manufactured” venue in Kings County “[t]hrough a clever exploitation of Section 1001(6) of the Surrogate's Court Procedure Act.” The Supreme Court granted the motions to change venue from Kings County to Orange County, and denied the plaintiffs' cross motion. The court “concede [d]” that venue in Kings County was “not improper, as a matter of law,” and it recognized that the defendants had not established grounds for a discretionary change of venue under CPLR 510(1) or (3). Nonetheless, the court concluded that the defendants had “successfully demonstrated that the action is improperly venued under all of the circumstances,” and held that Kings County is “simply ‘not a proper county’ ” pursuant to CPLR 510(1), and that “ ‘the ends of justice will be promoted by the change’ ” pursuant to CPLR 510(3). The plaintiffs appeal.
The defendants failed to establish grounds supporting a change of venue under CPLR 510(1) or (3). As the Supreme Court recognized, the moving defendants failed to establish that venue was, as a matter of law, not “proper” (CPLR 510[1]; seeCPLR 503[b] ), or that “the convenience of material witnesses and the ends of justice will be promoted by the change” (CPLR 510 [3]; see Lapidus v. 1050 Tenants Corp., 94 A.D.3d 950, 950–951, 943 N.Y.S.2d 129; Thomas v. Guttikonda, 68 A.D.3d 853, 854, 889 N.Y.S.2d 679; Walsh v. Mystic Tank Lines Corp., 51 A.D.3d 908, 908–909, 859 N.Y.S.2d 233; Frankel v. Stavsky, 40 A.D.3d 918, 919, 838 N.Y.S.2d 90). Finally, the moving defendants failed to establish that the appointment of Peoples as administrator of the decedent's estate “amounts to a fraud upon the court” (Koschak v. Gates Constr. Corp., 225 A.D.2d 315, 316, 639 N.Y.S.2d 10; see Martinez v. Tsung, 14 A.D.3d 399, 400, 789 N.Y.S.2d 474; cf. Yanez v. Western Beef, Inc., 28 A.D.3d 751, 752, 812 N.Y.S.2d 894). Accordingly, the court should have denied the motions to transfer venue and granted the cross motion to retain venue in Kings County.