Opinion
February 28, 1994
Appeal from the Supreme Court, Westchester County (Burrows, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
While it has often been stated that, generally, the venue of a consolidated action should be placed in the county where the first action was commenced (see, Mitchel v. Thacker, 159 A.D.2d 701), that rule is not inflexible. "[T]he court, in its sound discretion, must consider a number of factors, including the county where cause of action arose and where the parties and witnesses are located" (Woods v. County of Westchester, 112 A.D.2d 1037, 1038; see also, Strasser v. Neuringer, 137 A.D.2d 750). Accordingly, an order determining venue generally will not be disturbed unless it has been clearly shown that there has been an improvident exercise of discretion (see, Bellomo Leasing Corp. v Frost, 90 A.D.2d 909).
Upon our review of the record in this case, we can find no basis for disturbing the court's exercise of discretion in selecting Westchester County as the place of trial. The plaintiff is a resident of New Jersey and the defendant Roberts is a resident of Westchester County. There are no nonparty witnesses residing in the Bronx, and the only parties who do reside in the Bronx, the defendant Belmont Community Day Care Center, Inc., and the defendant Belmont Community Center, Inc., do not object to placing venue in Westchester County. Moreover, venue for a transitory action is often placed in the county where the accident occurred (see, e.g., Creed v. United Hosp., 158 A.D.2d 654), in this case the Bronx. However, since the accident at bar occurred over 20 years ago, there is no compelling reason to adhere to the general rule. Accordingly, it was not an improvident exercise of discretion to place venue of this consolidated action in Westchester County. Balletta, J.P., Pizzuto, Friedmann and Krausman, JJ., concur.