Opinion
Index No. 1805226/12 Motion Seq. Nos. 001
2013-09-24
VINCENT ODOARDI and JENNIFER ODOARDI, Plaintiffs, v. JODI ABRAMSON, M.D., BENJAMIN LIBERATORE, M.D., TLC VISION CENTERS, INC, TLC VISION (USA) CORP., TLC LASER EYE CENTERS - WHITE PLAINS, LASER AND CORNEAL SURGERY ASSOCIATES, P.C., and NICHOLAS DONAS, M.D., PLLC, Defendants.
, J.:
Defendants Benjamin Liberatore, M.D., and Nicholas Donas, M.D., have moved, and defendants Jodi Abramson, M.D., and Laser and Corneal Surgery Associates, P.C., have cross-moved, in this medical malpractice action for an order to change venue from New York County to Westchester County pursuant to CPLR §510(3). They argue that the trial should more properly be held in Westchester County because the plaintiff herself lives in Westchester County and the medical treatment at issue was provided there. Plaintiffs oppose the motions, arguing that the action was properly venued here in the first instance based on the residence of the various corporate defendants; that the defendants delayed unreasonably in making these motions; and that the defendants have failed to meet the statutory burden for a discretionary change of venue based on witness convenience and the interest of justice.
Discussion
The moving defendants here do not dispute that plaintiffs were statutorily entitled to place venue in New York County when the action was commenced based on the "residence" in this county of the various corporate defendants. In support of the asserted venue, plaintiffs provided copies of the registration statements on file with the New York State Department of State Division of Corporations for TLC Vision Centers, Inc., TLC Vision (USA), and Laser and Corneal Surgery Associates, P.C. (Exh E-H). All three corporate entities listed a registered agent in New York County. That designation constitutes a designation of residence for venue purposes under CPLR § 503. See, e.g., Shetty v Volvo Cars of N.A., 38 AD3d 201 (1st Dep't 2007). TLC has not moved here or otherwise disputed the validity of the information. Nor has Laser and Corneal Surgery disputed the information, even though it is a party to the cross-motion.
Aware of this information based on plaintiffs' affidavit submitted in response to the Defendants' Demand to Change Venue, the movants here are not claiming that venue in New York County is improper as a matter of law; rather, they seek only a discretionary change of venue pursuant to CPLR §510, subd. 3. That provision states in relevant part that:
The court, upon motion, may change the place of trial of an action where ... the convenience of material witnesses and the ends of justice will be promoted by the change.A discretionary change of venue under this subdivision is not subject to the demand requirements of CPLR §511 but may be sought by any party "within a reasonable time after commencement of the action." CPLR §511(a). While plaintiffs contend that defendants' ten-month delay in moving is not reasonable, they have not established prejudice or any other facts that render the delay unreasonable as a matter of law. Therefore, this Court will determine the motions on the merits.
It is not enough for a defendant to state in conclusory fashion in its moving papers that the convenience of witnesses would be served by a change in venue. Rather, the moving party bears the burden of demonstrating through detailed evidence that the convenience of material witnesses would be better served by the change in venue. Chimarios v Duhl, 152 AD2d 508 (1st Dep't 1989). This showing must include:
(1) the identity of the proposed witnesses;Cardona v Aggressive Heating Inc., 180 A.D.2d 572 (1st Dep't 1992); see also Kraft v Kamalian, 290 AD.2d 264 (1st Dep't 2002), citing O'Brien v Vassar Bros. Hosp., 207 A.D.2d 169 (2nd Dep't 1995). Only after such a detailed evidentiary showing that material witnesses would in fact be inconvenienced will a discretionary change of venue be granted; absent such evidence, the movant's burden has not been met and the motion must be denied. Hernandez v Rodriguez, 5 A.D.3d 269 (1st Dep't 2004).
(2) the manner in which they will be inconvenienced by a trial in the county in which the action was commenced;
(3) that the witnesses have been contacted and are available and willing to testify for the movant; and
(4) the nature of the anticipated testimony and the manner in which the anticipated testimony is material to the issues raised in the case.
In the instant case, defendants have wholly failed to meet their burden. The motions consist solely of attorney affirmations not based on personal knowledge. Counsel for the initial movants asserts that all treatment at issue was provided in Westchester County. He adds (at ¶¶ 11-12) that "not one of the individually named defendants reside or maintain offices in New York County. Additionally, plaintiffs do not reside in New York County and no material non-party witnesses have been identified as residing in New York County."
These affirmations are insufficient. The moving party bears the burden of showing "the manner in which [the witnesses] will be inconvenienced by a trial in the county in which the action was commenced." Cardona, 180 A.D.2d at 572. The need to travel from one county to another does not, standing alone, constitute inconvenience justifying a discretionary change in venue, particularly where, as here, the distance is short and transportation is readily available. Hernandez, 5 AD2d at 270 (travel from Suffolk County to Bronx County does not give rise to a presumption of inconvenience); see also, Goldberg v Bivins, 295 A.D.2d 162 (1st Dep't 2002)(affirming the denial of defendant's motion to change venue from New York County to Sullivan County based on the residence of a witness in Sullivan County and medical treatment there).
Understandably, no affidavits are offered from the parties because the convenience of the parties or their employees to an action is not a "weighty factor" in considering a discretionary motion to change venue. Martinez v Dutchess Landaq, Inc., 301 A.D.2d 424, 425-26 (1st Dep't 2003). More significantly, defendants have failed to make any showing that they have made contact with any other potential nonparty witnesses and confirmed that they are able and willing to testify but are reluctant to do so because New York County is an inconvenient location. Carrozza, 292 AD.2d at 279; Goldberg v Bivins, 295 AD.2d 162 (1st Dep't 2002).
The cases cited by defense counsel do not provide otherwise. Cases such as Castro v New York Hosp. Med. Ctr. of Queens, 52 AD3d 251 (1st Dep't 2008) are distinguishable based on the court's finding that plaintiff had failed to set venue in a statutorily proper county in the first instance. Those cases that appearto involve the court's discretion, such as Espinoza v Concordia Intl. Forwarding Corp., 39 AD3d 258 (1st Dep't 2007), are distinguishable on the facts because the only tie to the designated county was the residence of a "nominal individual defendant, an employee of the corporate defendant who admittedly was acting within the scope of his duties at the time of the accident, such that if liability were adjudged against him, he would be indemnified by his employer." Not only are the facts of our case different, but the Espinoza case is distinguishable because the movants apparently met their burden of providing sufficient evidentiary material to justify the discretionary change.
Accordingly, it is hereby
ORDERED that defendants' motion and cross-motion to change venue from New York County to Westchester County is denied, and plaintiff's action shall proceed in New York County. The parties are directed to appear before the Court in Room 222 on October 9, 2013 for a status conference as previously scheduled to arrange for the expeditious completion of all outstanding discovery.
This constitutes the decision and order of the Court.
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J.S.C.
ALICE SCHLESINGER