Opinion
Index No. 805042/2017 Motion Seq. No. 010
04-25-2022
MICHAEL DAVIS and ALYSSA DAVIS, Plaintiffs, v. GABRIEL ALARCON, D.O., COLUMBIA MEMORIAL FAMILY CARE-VALATIE, THE COLUMBIA MEMORIAL HOSPITAL, LISA GALATI, M.D., STEVEN PARNES, M.D., UNIVERSITY EAR NOSE & THROAT OF NORTHEASTERN NEW YORK, LLP, MICHAEL KORTBUS, M.D., HUDSON ENT, P.C., TODD DOYLE, M.D., NEW YORK ONCOLOGY HEMATOLOGY, P.C., ALBANY MEDICAL CENTER HOSPITAL, and MEMORIAL HOSPITAL FOR THE TREATMENT OF CANCER AND ALLIED DISEASES, Defendants.
Unpublished Opinion
MOTION DATE 04/18/2022
PRESENT: HON. JOHN J. KELLEY Justice
DECISION + ORDER ON MOTION
JOHN J. KELLEY J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 010) 399, 400, 401, 402, 403, 404, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 420, 421 were read on this motion to/for CHANGE VENUE .
In this action to recover damages for medical malpractice, the defendants Albany Medical Center Hospital and Lisa Galati, M.D. (together the AMCH defendants), move pursuant to CPLR 510(1) and 511(b) to transfer venue of the action from New York County to Albany County on the ground that New York County is no longer a proper county for the place of trial. The defendants Todd Doyle, M.D., and New York Oncology Hematology, P.C. (together the NYOH defendants), separately move, in papers incorrectly denominated as a cross motion, for the same relief. The plaintiffs oppose the motions and purportedly cross-move to retain venue in New York County. The motions are granted, the cross motion is denied, and the action is transferred to the Supreme Court, Albany County.
In the first instance, the NYOH defendants' motion was not a proper cross-motion because that application did not seek relief against a moving party; instead, their motion was, in effect, a separate motion (see CPLR 2215; Asiedu v Lieberman, 142 A.D.3d 858, 858 [1st Dept 2016]; Kershaw v Hospital for Special Surgery, 114 A.D.3d 75, 88 [1st Dept 2013]; Guzetti v City of New York, 32 A.D.3d 234 [1st Dept 2006]; Gaines v Shell-Mar Foods, Inc., 21 A.D.3d 986 [2d Dept 2005]; Sheehan v Marshall, 9 A.D.3d 403 [2d Dept 2004]; Lucheux v William Macklowe Co., LLC, 2017 NY Slip Op 31044[U], 2017 NY Misc. LEXIS 187 [Sup Ct, N.Y. County, May 11, 2017]). CPLR 2214 requires such a separate motion to be made on at least eight days notice. The mislabeling of a motion as a cross motion, however, may treated as a "technical" defect to be disregarded, particularly where the nonmoving party does not object and the consideration of the application results in no prejudice to the nonmoving party (see Sheehan v Marshall, 9 A.D.3d at 404). Although the NYOH defendants uploaded their notice of cross-motion to the NYSCEF electronic filing system on April 11, 2022, and made their application returnable on April 18, 2022---only seven days prior to the return date---they sought the exact same relief as the AMCH defendants on the same ground as the AMCH defendants Hence, there is no prejudice to the plaintiffs if the court considers the NYOH defendants' motion as if it were timely and properly noticed.
The plaintiffs are residents of Greene County. Their initial basis for placing venue in New York County was the "Defendant's Residence," as the defendant Memorial Hospital for Cancer and Allied Diseases, also known as Memorial Sloan Kettering Cancer Center (MSKCC), is located in Manhattan. Three of the defendants reside in Columbia County, two reside in Dutchess County, and six reside in Albany County. By order dated February 24, 2022, this court, among other things, awarded summary judgment dismissing the complaint against the defendant Steven Parnes, M.D. (SEQ 005). By order dated February 25, 2022, this court awarded summary judgment dismissing the complaint against the defendants Gabriel Alarcon, D.O., Columbia Memorial Family Care-Valatie, and The Columbia Memorial Hospital (SEQ 006). By order dated March 1, 2022, this court awarded summary judgment dismissing the complaint against MSKCC (SEQ 007). By order dated March 8, 2022, this court awarded summary judgment dismissing the complaint against the defendants Michael Kortbus, M.D., and Hudson ENT, P.C. (SEQ 009). Consequently, the only defendants remaining in the action are the AMCH defendants, the NYOH defendants, and University Ear Nose & Throat of Northeastern New York, LLP, all of whom reside in Albany County.
Contrary to the plaintiffs' contention, when venue is premised on solely upon one party's residence, and that party is dismissed from the action, venue no longer properly lies in the county of that party's residence (see Halina Yin Fong Chow v Long Is. R.R. Co., 202 A.D.2d 154, 155 [1st Dept 1994]). This is the result regardless of whether the party was dismissed from the action because it was an improper party (see Scuorzo v Safdar, 134 A.D.3d 511, 511 [1st Dept 2015]; Halina Yin Fong Chow v Long Is. R.R. Co., 202 A.D.2d at 155), because it prevailed on a motion pursuant to CPLR 3211(a)(7) (see Gramazio v Borda, Wallace & Witty, 181 A.D.2d 428, 429 [1st Dept 1992]), or because it was awarded summary judgment dismissing the complaint against it (see Baulieu v Ardsley Assoc., L.P., 85 A.D.3d 554, 556 [1st Dept 2011]; Caplin v Ranhofer, 167 A.D.2d 155, 157-158 [1st Dept 1990]; Mitts v H.I.P. of Greater New York, 104 A.D.2d 318, 319 [1st Dept 1984]). Moreover, the AMCH defendants made their motion to transfer venue on March 28, 2022 (see CPLR 2211), less than four weeks after MSKCC was dismissed from the action. Since the motion was "promptly" made, it was not "untimely" (Caplin v Ranhofer, 167 A.D.2d at 157 [venue transfer motion was timely where it was made five months after the only defendant who resided in New York County was awarded summary judgment]).
The plaintiff's purported cross motion to retain venue in New York County must be denied, as it merely constitutes opposition to the motions to change venue. As such, it does not seek any affirmative relief and, hence, is not the proper subject of a cross motion (see Koegler v Amraly, 2020 NY Slip Op 50858[U], 68 Misc.3d 1204[A] [Sup Ct, N.Y. County, Jul. 22, 2020]).
In light of the foregoing, it is
ORDERED that, on the court's own motion, the caption is amended to read as follows:
MICHAEL DAVIS and ALYSSA DAVIS, Plaintiffs,
v.
and it is further, ORDERED that the motion of the defendants Albany Medical Center Hospital and Lisa Galati, M.D., and the separate motion of the defendants Todd Doyle, M.D., and New York Oncology Hematology, P.C., to transfer venue of this action from New York County to Albany County are granted; and it is further, ORDERED that the plaintiffs' cross motion is denied; and it is further, ORDERED that within 30 days after the entry of this order, the defendants Albany Medical Center Hospital and Lisa Galati, M.D.,LISA GALATI, M.D., UNIVERSITY EAR NOSE & THROAT OF NORTHEASTERN NEW YORK, LLP, TODD DOYLE, M.D., NEW YORK ONCOLOGY HEMATOLOGY, P.C., and ALBANY MEDICAL CENTER HOSPITAL, Defendants.
(a) shall file an EF-22 form and the statement required by CPLR 8019(c) by uploading them to the NYSCEF system, and
(b) shall serve copies of the EF-22 form and the statement required by CPLR 8019(c) upon the New York County Clerk, as Clerk of the Supreme Court, New York County, along with a copy of this order with notice of entry of this order, and
(c) shall also serve a copy of this order with notice of entry of this order upon the Albany County Clerk, as Clerk of the Supreme Court, Albany County, and
and it is further, ORDERED that upon service upon him of the EF-22 form, the statement required by CPLR 8019(c), and a copy of this order with notice of entry, the New York County Clerk, as Clerk of the Supreme Court, New York County, is directed to deliver to the Albany County Clerk, as Clerk of the Supreme Court, Albany County, all papers filed in the action entitled Michael Davis, et ano. v. Gabriel Alarcon, D.O., et al., under New York County Index No. 805042/2017, and certified copies of all minutes and entries.(d) shall also serve of copy of this order with notice of entry upon the Trial Support Office, 60 Centre Street, Room 148, New York, New York 10007, after which the Clerk of the Court shall amend the court records accordingly;
This constitutes the Decision and Order of the court.