Susan Wilber v Quality Vacuum Forming Machine Company

Matter of Wilber 2003 NY Slip Op 19212 [2 AD3d 1266] December 5, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of Susan Wilber et al., Appellants, for Discovery in Aid of Bringing an Action. (Action No. 1.) Susan Wilber et al., Appellants,
v
Quality Vacuum Forming Machine Company, Inc., Respondent and Third-Party Plaintiff-Respondent. Foamex International, Inc., Third-Party Defendant-Respondent. (Action No. 2.) Susan Wilber et al., Appellants, v Pak-Tech, Inc., et al., Defendants, and Recticel Foam Corporation et al., Respondents. (Action No. 3.) (Appeal No. 1.)

—

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.

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 preaction 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 AD2d 560 [2002]). 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.). Present—Pine, J.P., Wisner, Kehoe, Gorski and Lawton, JJ.