Opinion
2013-01-8
Maria ROSADO, Plaintiff, Theresa Christmas, an infant under the age of fourteen by her guardian ad litem, Virginia O'Donnell–McNamara, et al., Plaintiffs–Respondents, v. REDLAND BRICK, INC., etc., et al., Defendants–Appellants, Nicolia Industries, Inc., et al., Defendants.
Lester, Schwab, Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for State Material & Masonry Supply Corp., appellant. Michelle S. Russo, P.C., Port Washington (Michelle S. Russo of counsel), for respondents.
Lester, Schwab, Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for State Material & Masonry Supply Corp., appellant. Michelle S. Russo, P.C., Port Washington (Michelle S. Russo of counsel), for respondents.
TOM, J.P., ANDRIAS, FREEDMAN, ROMÁN, GISCHE, JJ.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered June 6, 2012, which, to the extent appealed from, denied defendants-appellants' motions to transfer venue from Bronx County to Queens County and granted plaintiffs-respondents' cross motion to retain venue in Bronx County, unanimously affirmed, without costs.
This action arises from a multi-car motor vehicle accident that occurred in New Jersey, and resulted in the deaths of three members of the Christmas family and injury to plaintiff Rosado, a resident of the Bronx. Plaintiff Rosado commenced an action in Bronx County, and plaintiffs-respondents, representing the surviving child of the Christmas family and the estates of the deceased members of the family, subsequently commenced two actions in Queens County. In December 2008, Rosado's motion to consolidate all three actions was granted without opposition, and the Christmas actions were transferred to Bronx County for joint trial. Bronx County is therefore the proper place for trial of the Christmas actions (CPLR 509). Although Rosado has since settled her claims against all defendants, she was a proper party at the outset and there is no contention that plaintiffs engaged in forum shopping ( see Yanez v. Western Beef, Inc., 28 A.D.3d 751, 812 N.Y.S.2d 894 [2d Dept.2006];compare Halina Yin Fong Chow v. Long Is. R.R., 202 A.D.2d 154, 155, 608 N.Y.S.2d 186 [1st Dept.1994] ). Furthermore, plaintiffs-respondents made a showing that Bronx County would be a more convenient forum for a nonparty witness.