Opinion
13115N Index No. 29274/18E Case No. 2020-01997
02-11-2021
Lisa BLACK, as Administratrix of the Estate of Anthony D. Harris, deceased, Plaintiff–Appellant, v. FRAKEN BUILDERS, INC., et al., Defendants–Respondents, West Bend et al., Defendants.
Pen~a & Kahn, PLLC, Bronx ( Diane Welch Bando of counsel), for appellant. Law Office of James J. Toomey, New York (Evy Kazansky of counsel), for Fraken Builders, Inc., respondent. Thompson Hine LLP, Cleveland, OH ( Conor A. McLaughlin, of the bar of the State of Ohio, admitted pro hac vice, of counsel), for Focus Products Group International, LLC, respondent.
Pen~a & Kahn, PLLC, Bronx ( Diane Welch Bando of counsel), for appellant.
Law Office of James J. Toomey, New York (Evy Kazansky of counsel), for Fraken Builders, Inc., respondent.
Thompson Hine LLP, Cleveland, OH ( Conor A. McLaughlin, of the bar of the State of Ohio, admitted pro hac vice, of counsel), for Focus Products Group International, LLC, respondent.
Acosta, P.J., Kapnick, Singh, Mendez, JJ.
Order, Supreme Court, Bronx County (Ruben Franco, J.), entered on or about January 8, 2020, which granted defendant Fraken Builders, Inc.’s motion, and the cross motion of defendant Focus Products Group International, LLC, to change venue from Bronx County to Westchester County, unanimously affirmed, without costs.
Defendants met their burden for a discretionary change of venue of this action from Bronx County to Westchester County ( Wickman v. Pyramid Crossgates Co., 127 A.D.3d 530, 531, 9 N.Y.S.3d 13 [1st Dept. 2015] ; see Tricarico v. Cerasuolo, 199 A.D.2d 142, 605 N.Y.S.2d 84 [1st Dept. 1993] ). "[T]he situs of plaintiff's injury provides a basis for a discretionary change of venue ... ( CPLR 510[3] ) in that, ‘things being equal, a transitory action should be tried in the county where the cause of action arose’ " ( Wickman, 127 A.D.3d at 531, 127 A.D.3d 530, quoting Young Hee Kim v. Flushing Hosp. & Med. Ctr., 138 A.D.2d 252, 253, 525 N.Y.S.2d 209 [1st Dept. 1988] ).
Here, the injury arose in Westchester County. Additionally, the principal place of business of defendant, Fraken Builders, Inc., the owner of the building where the alleged incident occurred and plaintiff's decedent resided, is in Westchester County, plaintiff identified as potential nonparty witnesses multiple emergency and medical professionals affiliated with the New Rochelle Fire Department, Westchester County Office of Medical Examiner, and New Rochelle Hospital, in Westchester County, and all relevant medical and police records are situated in Westchester County ( see Tricarico, 199 A.D.2d 142 at 143, 605 N.Y.S.2d 84 ). Moreover, plaintiff subsequently relocated from Bronx County to Nassau County ( see Young Hee Kim, 138 A.D.2d at 253, 525 N.Y.S.2d 209 ). Under these circumstances, changing venue to Westchester County will better promote the ends of justice ( see Hayland Farms Corp. v. Aetna Cas. & Sur. Co., 89 A.D.2d 516, 452 N.Y.S.2d 62 [1st Dept. 1982] ; see also Country–Wide Ins. Co. v. Melia, 169 A.D.3d 452, 91 N.Y.S.3d 882 [1st Dept. 2019] ).