Opinion
Index 512224/2021
01-06-2022
SUZANNE LEONORO, as Executor of the Estate of MARIE LEONORO, Deceased and SUZANNE LEONORO, Individually, Plaintiff(s), v. FLUSHING HOSPITAL and MEDICAL CENTER, LONG ISLAND CARE CENTER, INC. SAPPHIRE CENTER FOR REHABILITATION AND NURSING Defendants
Unpublished Opinion
DECISION/ORDER
Hon. Bernard J. Graham Supreme Court Justice
Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion and cross-motion to: direct a change of venue from Kings County to Queens County. pursuant to CPLR §§ 503, 510. and511 and cross-motion which opposes the relief sought by defendants herein.
Papers Numbered
Notice of Motion and Affidavits Annexed....................... 1-2, 3-4, 5-6
Order to Show cause and Affidavits Annexed............. _____
Answering Affidavits & Cross-motion....................... 7-8, 9
Replying Affidavits....................................................... 10
Exhibits....................................................................... _____
Others........Memo......................................................11
Upon the foregoing cited papers, the Decision/Order on this motion is as follows:
Defendants Flushing Hospital Medical Center ("Flushing Hospital") and Debabrata Sen, M.D. (" Dr. Sen ") have moved, (seq . 1), and Defendant Sapphire Center for Rehabilitation and Nursing of Central Queens, LLC ("Sapphire Center") has cross-moved (seq. 2), pursuant to CPLR §§503, 510, and 511, for an Order transferring this action from Kings County Supreme Court to Queens County Supreme Court upon the grounds that Kings County is an improper venue, as defined by statute, as none of the parties resided in Kings County, it is not the principle place of business of a defendant, nor did the cause of action accrue in Kings County, as all of the care rendered to the decedent occurred in Queens County. While defendants Long Island Care Center ("L.I. Care Center") and Devang M. Dave, M.D. s/h/a Devang Dave, M.D. ("Dr. Dave"), have not moved in this matter, each has submitted affirmations in support of the relief sought in co-defendants' motion and cross-motion and in opposition to plaintiffs cross-motion.
Counsel for the plaintiff Suzanne Leonoro, as Executor of the Estate of Marie Leonoro, Deceased ("plaintiff), has opposed the relief sought by the defendants in the motion and cross-motion, and in so doing has cross-moved (seq. 3) for an Order deeming the selection of Kings County as the proper venue in this action, based upon the employment of Dr. Sen.
Background:
On or about May 21, 2021, an action was commenced on behalf of the plaintiff by the filing of a Summons and Complaint with the Clerk's office of Kings County. In said Complaint, plaintiff seeks to recover damages based upon alleged medical malpractice, common law negligence, nursing home negligence and violations of New York Public Health Law § 2801-d and § 2803-c, as well as wrongful death. Marie Leonoro ("decedent") died on September 8, 2017. Thereafter, upon an application to the Queens Surrogate's Court, Letters Testamentary were issued on April 22, 2021 to Suzanne Leonoro for the Estate of Marie Leonoro.
The basis of venue is defendant's place of business: 1335 Linden Blvd. Suite 100, Brooklyn, N.Y. 11212 and 555 Rockaway Parkway, Brooklyn, N.Y., 11212
Plaintiff previously commenced an action under Index number 3310/2019, in which the same relief was sought. The action was dismissed by Decision and Order of Justice Karen Rothenberg dated January 8, 2021, in which the Court determined that the plaintiff as a Proposed Administrator lacked capacity as well as standing to commence this action to recover damages for personal injuries and/or for wrongful death.
Issue was joined on behalf of the defendants, by the service of their Verified Answers, which were later amended. Thereafter, counsel for defendants Flushing Hospital, Dr. Sen, as well the Sapphire Center served and filed a Demand for a Change of Venue, to transfer venue of this action to Queens County, pursuant to CPLR§ 503(c) (see NYSCEF Doc. No. 20 and 30). Counsel for the plaintiff served a Response, on or about August 10, 2021, in which consent was not given to the Demand for a Change of Venue (see NYSCEF Doc. No. 46).
Facts:
It is alleged by the plaintiff that the decedent was a patient at Flushing Hospital from April 23, 2017 through May 5, 2017; June 3, 2017 through June 16, 2017; and from August 9, 2017 through September 8, 2017. It is further alleged that the decedent was a patient at L.I. Care Center, a rehabilitation and skilled nursing facility from May 5, 2017 through June 3, 2017, as well as at the Sapphire Center, a rehabilitation and skilled nursing facility, from July 16, 2017 to August 9, 2017. Plaintiff alleges that Flushing Hospital, L.I. Care Center, Sapphire Center, as well as Dr. Sen and Dr. Dave (who were assigned to provide medical services to the decedent), were negligent and committed acts and/or omissions which constituted medical malpractice in connection with the medical care provided. Due to the defendants' alleged malpractice and negligence, counsel for the plaintiff asserts that the decedent was caused to develop a serious unstageable sacral pressure ulcer and subsequent septic infection which resulted in her suffering severe pain and her untimely death.
Parties' contentions:
Here, the Court is presented with the issue as to whether the venue should be transferred from Kings County to Queens County.
In support of the motion by Flushing Hospital and Dr. Sen, counsel argues that proper venue is in Queens County, pursuant to CPLR §503(d), as Dr. Sen was and still is a resident of Queens County and does not maintain a place of residence or a principal place of business in Kings County. Dr. Sen states that when the alleged underlying cause of action arose (between April 23, 2017 and June 3, 2017) he was an employee of Flushing Hospital, which is located in Queens County. Dr. Sen further asserts that, although he was employed by non-party Brookdale University Medical Center ("Brookdale") when the original action was commenced on September 4, 2019, he did not have a private office in Kings County. Counsel for Dr. Sen also offers a printout of the New York State Education Department ("NYSED") physician license registration for Dr. Sen, which indicates he was and is registered in Queens County. Counsel has further submitted an affidavit in which Dr. Sen states that he did not and does not reside in Kings County (see Dr. Sen affidavit annexed as NYSEF Doc. No. 22).
Counsel asserts all of the care rendered by Dr. Sen (between April 2017 and June 2017) was performed in his capacity as an attending physician at Flushing Hospital and within the scope of his employment.
Brookdale is located in Brooklyn, N.Y, Dr. Sen claims that he treated patients at that medical facility pursuant to the terms of his employment, similar to the treatment he provided to patients at Flushing Hospital. Counsel argues that none of the care and treatment that Dr. Sen rendered to the decedent was done so as an employee, agent, representative, etc. of Brookdale nor did he treat the decedent in Kings County.
In support of the Cross-Motion by Sapphire Center to change venue from Kings County to Queens County, counsel also relies on Dr. Sen's affidavit to establish that Kings County is not a proper venue, and that the proper venue is Queens County. Sapphire Center also maintains they have complied with the appropriate statutes in seeking a change of venue.
Defendants L.I. Care Center and Dr. Dave have each submitted affirmations in support of the motions of their co-defendants, in which they echo the arguments made in those motions, and reiterate that there are no individual defendants with a place of residence or institutional defendants with a principal place of business located in Kings County, and that the alleged malpractice and negligence arose from care rendered at the institutional defendants' facilities, all of which are located in Queens County.
Counsel for Dr. Dave asserts that at no point in time did his client maintain an office for the practice of medicine in Kings County.
Plaintiff, by her attorneys, opposes defendants' motions, arguing that the movants have failed to establish that Kings County was not the proper venue pursuant to CPLR §510(1), because Dr. Sen admits in his affidavit that he maintains an office in Kings County (Brookdale), which plaintiff asserts is sufficient for the purposes of establishing venue.
Discussion:
To prevail on a motion to change venue, pursuant to CPLR §510(1), a defendant must show that the plaintiffs choice of venue is improper, and also that the defendant's choice of venue is proper. Bostick v Safa. 173 A.D.3d 823 [2d Dept 2019]; Pinos v Clinton Cafe & Deli. Inc.. 139 A.D.3d 1034, 1035 [2d Dept 2016]. Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper. Young Sun Chung v Kwah. 122 A.D.3d 729, 730 [2d Dept 2014]; Peas v Ahmed. 120 A.D.3d 750 [2d Dept 2014]; Chehab v Roitman. 120 A.D.3d 736 [2d Dept 2014].
CPLR §503{a) provides that the place of trial "shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff..." Here, all of the care and treatment that was at issue were rendered at Flushing Hospital located at 4500 Parsons Blvd, Flushing, New York in Queens County and the other defendants, L.I. Care Center and Sapphire Center, are likewise situated in Queens County.
Under CPLR §503(d), the county of an individual's principal office is a proper venue for claims arising out of that business. Lividini v Goldstein. 37 N.Y.3d 1047 [2021]; Young Sun Chung v Kwah. 122 A.D.3d 729, 730 [2d Dept 2014], citing Berman v Gucciardo. 50 A.D.3d 717 [2d Dept 2008]; Friedman v Law. 60 A.D.2d 832 [2d Dept 1978].
Here, defendants have presented sufficient evidence to establish that Queens County is the proper venue for this matter, pursuant to CPLR §503(a) and (d) by offering a printout of Dr. Sen's New York State Education Department ("NYSED") physician license registration, which is admissible documentary evidence that the office in Queens County was defendant's principal place of business. (See Exhibit "F", annexed to Defendant Flushing Hospital's Motion). This information, which shows that Dr. Sen had designated Queens County as his principal office, was confirmed by Dr. Sen in his affidavit. (See Exhibit "E", annexed to Defendant Flushing Hospital's Motion); Lividini v Goldstein. 37 N.Y.3d at 1049 [2021]. It is undisputed that Dr. Sen did not provide any treatment to the decedent in Kings County, and that Flushing Hospital, L.I. Care Center and Sapphire Center are all located within Queens County. While plaintiff asserts that Dr. Sen's employment by Brookdale is sufficient to establish Dr. Sen maintained an office in Kings County at the time of the original action, defendants have established that Dr. Sen did not have a principle office in Kings County at time of the original action or the instant action, nor did he reside in Kings County.
Conclusion:
Accordingly, defendants' motion directing a change of venue from Supreme Court Kings County to Supreme Court Queens County is granted. The Clerk of this Court is directed to transfer the file to the Clerk of Supreme Court Queens County.
This shall constitute the decision and order of this Court.