In this action for medical malpractice, the claimants are represented by the executor of their estate.
A Probate Lawyer said the records show that one of the accused has moved the medical malpractice action to change venue pursuant to CPLR section 510(1), claiming that claimants improperly placed venue based on the current New York residence of a co-accused doctor, rather than on his residence in another county at the time of the alleged negligence. The complainant opposes, arguing that the doctor’s current residence is a proper basis for placing venue in New York County.
Hence, the issue is whether or not the venue in this action is improperly laid.
The Court held that, venue was Properly Placed in New York County. In New York, the place of trial shall be in the county designated by the complainant unless the court orders a change in response to accused’s motion or both parties agree to change venue. If venue is based on residence, “the place of trial shall be in the county in which one of the parties resided when it commenced” which, in the case of an individually-owned business, includes any county in which the business maintains its principal office.
An Estate Lawyer said that pursuant to CPLR section 510, the court upon motion may change the place of trial of an action where: (1) the county designated for that purpose is not a proper county; (2) there is reason to believe that an impartial trial cannot be had in the proper county; or (3) the convenience of material witnesses and the ends of justice will be promoted by the change.
According to accused, venue in New York County is improper under CPLR section 510(1) because it is based on the current business residence of co-accused in New York, rather than on his business residence at the time of the alleged malpractice in another County.
Queens Probate Lawyers said that wholly without merit is his argument that venue should be based on a party’s residence at the time the action arose. Complainant correctly asserts that what is relevant for placement of venue is the residence of a party on the date the action commenced and not at the time of the alleged negligence. Indeed, the statute expressly states that “except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it commenced.” Accused’s reliance on outdated case law for the proposition that transitory actions, venue should be in the county in which the action arose is misplaced, as both the governing statute and case law are clear.
Since venue was properly placed in New York County based on the current residence of co-accused, CPLR section 510(1) cannot serve as a basis to change venue, and accused may only seek discretionary relief. The Court further ruled that the Burden of Showing Witness Inconvenience has not Been Met. Although accused does not cite CPLR section 510(3) as grounds for relief, he argues that the convenience of material witnesses, including himself, would be served by a change of venue to the County, where the treatment at issue was provided.
Long Island Probate Lawyers said that when moving for a discretionary change of venue based on witness inconvenience, the moving party bears the burden of making a detailed evidentiary showing that the convenience of material witnesses would be better served by the change in venue. This showing must include: (1) the identity of the proposed witnesses; (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 it is material to the issues raised in the case. Only after such a detailed showing that material witnesses would in fact be inconvenienced will a change of venue be granted.
In the instant case, accused has failed to satisfy even the most basic of these factors. To meet his burden, he would have to provide affidavits from identified non-party witnesses. Instead, he simply proffers his own affidavit, in which he claims that a trial in New York County will inconvenience him because he has various commitments in another County where he maintains an office and practices medicine. His affidavit is wholly insufficient as it fails to identify even a single non-party material witness who would be inconvenienced. Moreover, his assertions regarding his own inconvenience are irrelevant because convenience to a party is not a factor in considering a discretionary motion to change venue. What is more, it cannot be said that travel from another County to New York is burdensome. The accused, in relying on generalized and conclusory assertions regarding potential witnesses, falls substantially short of meeting his evidentiary burden. Hence, the motion to change venue was denied.
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