Opinion
2022-00744 Index 805286/18
02-03-2022
Elisa Pollack et al., as Executor of the Estate of Albert Pollack, Deceased, Plaintiffs-Respondents, v. St. Francis Hospital et al., Defendants-Appellants, Ankur Anand, M.D. et al., Defendants. Appeal No. 15234-15234A Case Nos. 2021-02117, 2021-02203
Martin Clearwater & Bell LLP, East Meadow (Gregory A. Cascino of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondents.
Martin Clearwater & Bell LLP, East Meadow (Gregory A. Cascino of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondents.
Before: Manzanet-Daniels, J.P., Webber, Oing, Mendez, Higgitt, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about January 11, 2021, which, to the extent appealed from, denied defendants St. Francis Hospital, Neil R. Bercow, M.D., Lawrence H. Durban, M.D., and Alla Rus, P.A.'s motion to change venue from New York County to Nassau County pursuant to CPLR 510(3), unanimously affirmed, without costs. Order, same court and Justice, entered on or about May 19, 2021, to the extent it denied defendants' motion to renew their venue motion, unanimously affirmed, without costs, and appeal therefrom otherwise dismissed, without costs, as taken from a nonappealable order.
Defendants failed to establish that changing venue to Nassau County from New York County, which was properly designated based on the residence of one of the plaintiffs (see CPLR 503[a]; Cardona v Aggressive Heating, 180 A.D.2d 572, 573 [1st Dept 1992]), would better serve the convenience of material witnesses (CPLR 510[3]; see Cardona at 573). Defendants submitted an affirmation by only one prospective witness, and the witness did not set forth the substance and materiality of his anticipated testimony (see Berk v Linnehan, 85 A.D.3d 475 [1st Dept 2011]). The mere fact that the courthouse is in a different county does not give rise to a presumption that a witness will be inconvenienced (see Tawiah v McNiff, 193 A.D.3d 559 [1st Dept 2021]; Gersten v Lemke, 68 A.D.3d 681 [1st Dept 2009]).
The motion court properly denied defendants' renewal motion. The dismissal of the action against two defendants who then became nonparty witnesses, even if it were a "new fact" unknown to defendants when they first moved for a change of venue, would not change the prior determination (see CPLR 2221[e][2]). Defendants failed to demonstrate that these nonparty witnesses would be inconvenienced by having to travel from Nassau County to New York County for trial.
No appeal lies from the denial of reargument (Menkes v Delikat, 148 A.D.3d 442, 442 [1st Dept 2017]; see CPLR 5701 [a] [2] [viii]).