Opinion
CA 03-00960.
December 5, 2003.
Appeal from an order of Supreme Court, Erie County (Howe, J.), entered November 25, 2002, which denied that part of appellants' motion seeking to change the venue of action No. 2 to Erie County, granted that part of the cross motion of defendants Foamex, L.P., Foamex International, Inc. and David Zawierucha seeking to change the venue of action No. 3 to Cattaraugus County and transferred and deferred the remaining parts of the motion and remaining part of the cross motion to Cattaraugus County.
Ellis Kustell, Buffalo (Carl B. Kustell of Counsel), for appellants and plaintiffs-appellants.
Law office of Walter R. Pacer, Jr., Buffalo (James D. Schultz, JR., of Counsel), for defendant-respondent and third-party plaintiff-respondent Quality Vacuum forming Machine Company, inc.
Damon Morey LLP, Buffalo (Michael J. Willett of Counsel), for third-party defendant-respondent and defendant-respondent foamex international, inc. and defendants-respondents recticel foam corporation, foamex, l.p., and david zawierucha.
Before: PRESENT: PINE, J.P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the last two ordering paragraphs and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum: Susan Wilber and Tony Wilber sought pre-action discovery by application designated as action No. 1, and they thereafter commenced action Nos. 2 and 3 seeking damages for injuries sustained by plaintiff Susan Wilber when her left hand became caught in the rollers of a die cutting machine, partially amputating several of her fingers. Supreme Court properly granted that part of the cross motion of defendants Foamex, L.P., Foamex International, Inc. and David Zawierucha seeking to change the venue of action No. 3 to Cattaraugus County and to consolidate action Nos. 2 and 3 in Cattaraugus County, where action No. 2 was properly commenced ( see Kay v. Kritzer, 298 A.D.2d 560). The court erred, however, in failing to decide the remaining part of the cross motion seeking dismissal of action No. 3 against Zawierucha and the remaining parts of the motion made and orally argued before it prior to changing the venue of action No. 3, and instead "transferr[ing] and deferr[ing]" such matters to Cattaraugus County ( see Judiciary Law § 21). We therefore modify the order by vacating the last two ordering paragraphs and remit the matter to Supreme Court, Erie County, for that court to render a decision forthwith on those issues left unresolved ( see id.).