Cohen v Sacchi

[*1] Cohen v Sacchi 2012 NY Slip Op 51225(U) Decided on July 5, 2012 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 5, 2012
Supreme Court, Kings County

Allen Cohen and Joanne Cohen, Plaintiffs,

against

Terrence Sacchi, M.D., PARAG MEHTA, M.D., NEW YORK METHODIST HOSPITAL, QUEST DIAGNOSTICS INCORPORATED, LABORATORY CORPORATION OF AMERICA, MARVIN BECKER, M.D., and GARY BECKER, D.O., Defendants.



5169/09



Plaintiffs Allen Cohen and Joanne Cohen were represented by John Bonina, Esq. of Bonina & Bonina, P.C. Defendants Terrence Sacchi, M.D. and New York Methodist Hospital were represented by Timothy M. Shelley, Esq. of Furey, Kerley, Walsh, Matera & Cinquemani, P.C. Defendant Parag Mehta, M.D. was represented by Stacy Fitzmaurice, Esq. of Geisler, Gabriele & Marano, LLP. Defendants Marvin Becker, M.D. and Gary Becker, D.O. were represented by Darren G. Rooney, Esq. of Wilson, Elser, Moskowitz, Edelman & Dicker LLP.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of defendants Terrence Sacchi, M.D. and New York Methodist Hospital for an order, pursuant to CPLR 510 (2), transferring venue; on the motion of defendant Parag Mehta, M.D. for the same relief; on the motion of defendants Marvin Becker, M.D. and Gary Becker, D.O. for the same relief; and Plaintiff's cross-motion for an order, pursuant to CPLR §§503, 510 and 511, "retaining venue":

-Notice of Motion (Cal. No. 5, MS No. 7)

Affirmation in Support

Exhibits A-M

-Notice of Motion (Cal. No. 6, MS No. 8)

Affirmation

Exhibits A-E [*2]

-Notice of Motion to Change Venue (Cal. No. 8, MS No. 9)

Affirmation in Support of Motion to Change Venue

Exhibits A-E

-Notice of Cross-Motion (Cal. No. 7, MS No. 10)

Attorney's Affirmation

Affidavit

Exhibits A-D

-Reply Affirmation & Affirmation in Opposition to Plaintiff's [sic] Cross Motion

-Reply Affirmation & Affirmation in Opposition to Plaintiff's [sic] Cross Motion

-Reply Affirmation

-Affirmation in Reply

Plaintiffs Allen Cohen and Joanne Cohen were represented by John Bonina, Esq. of Bonina & Bonina, P.C. Defendants Terrence Sacchi, M.D. and New York Methodist Hospital were represented by Timothy M. Shelley, Esq. of Furey, Kerley, Walsh, Matera & Cinquemani, P.C. Defendant Parag Mehta, M.D. was represented by Stacy Fitzmaurice, Esq. of Geisler, Gabriele & Marano, LLP. Defendants Marvin Becker, M.D. and Gary Becker, D.O. were represented by Darren G. Rooney, Esq. of Wilson, Elser, Moskowitz, Edelman & Dicker LLP.

With separate motions, defendants Terrence Sacchi, M.D. and New York Methodist Hospital, defendant Parag Mehta, M.D., and defendants Marvin Becker, M.D. and Gary Becker, D.O., move for an order, pursuant to CPLR 510, transferring this medical malpractice action from Kings County. Plaintiffs Allen Cohen and Joanne Cohen "cross-move" for an order, pursuant to CPLR 503, 510, and 511, "retaining venue of this matter in Kings County" (see notice of cross-motion dated May 17, 2012.)

The action was commenced in March 2009; a preliminary conference was held in October 2009; and a compliance conference was held in August 2010. Plaintiff Joanne Cohen was deposed in May 2010, and testified that she had been employed by the Unified Court System since 1988, and served as Law Secretary to Hon. Bert A. Bunyan, Justice of the Supreme Court, Kings County, for 16 or 17 years. Plaintiffs filed and served their note of issue in December 2011.

Subsequent to the filing of the note of issue, with separate motions, defendant Mehta, defendants Marvin Becker and Gary Becker, and defendant Quest Diagnostics Incorporated moved for summary dismissal of the action, and Plaintiffs moved for leave to amend or supplement their bill of particulars. (On the return date for the pending venue motions, none of the parties objected to the Court's addressing Quest's summary judgment motion, notwithstanding their respective contentions on the venue motions, and the Court granted the motion with a short-form order.)

The summary judgment motions and Plaintiffs' motion for leave to amend were assigned to Hon. Laura Lee Jacobson, and the parties appeared before her on April 3, 2012. On that date, [*3]Justice Jacobson recused herself, and referred the action for reassignment to the Administrative Judge, Hon. Sylvia O. Hinds-Radix. None of the parties have supplied the Court with any written recusal order of Justice Jacobson, but there is no dispute that Justice Jacobson noted her relationship with Plaintiffs. "Absent a legal disqualification under Judiciary Law §14, a trial judge is the sole arbiter of the need for recusal, and the decision is a matter of discretion and personal conscience." (Matter of State of New York v Leon F., 84 AD3d 1098, 1100 [2d Dept 2011]; see also People v MacShane, 11 NY3d 841, 842 [2008]; People v Moreno, 70 NY2d 403, 405 [1987].)

The parties appeared before Justice Hinds-Radix on April 17, 2012, and the pending venue motions followed in May. With an Administrative Transfer Order dated June 15, 2012, the action was transferred to this Court "for all purposes."

This is no dispute that venue was properly placed in Kings County (see CPLR 503 [a], [c].) Plaintiffs are residents of Brooklyn; New York Methodist is located in Brooklyn; Drs. Sacchi and Mehta reside in Brooklyn, and each has an office in Brooklyn; and the Drs. Becker each has an office in Brooklyn. There is no dispute that Kings County is the most convenient forum for the action (see CPLR 510 [3]; Francis v Jenks, 28 AD2d 1007 [2d Dept 1967].)

Indeed, there is an "express legislative preference for actions being tried in proper counties" (see Saxe by Saxe v OB/GYN Assocs., P.C., 86 NY2d 820, 822 [1995].)

Where venue is properly placed, a motion for change of venue must be made "within a reasonable time after commencement of the action" (see CPLR 511 [a].) "No order to stay proceedings for the purpose of changing the place of trial shall be granted unless it appears from the papers that the change is sought with due diligence." (CPLR 511 [c].) The pending venue motions were made more than three years after the commencement of the action; almost two years after plaintiff Joanne Cohen was deposed and testified to her employment with the Unified Court System; and more than four months after service of the note of issue.

The respective motions of defendant Mehta and of defendants Sacchi and New York Methodist are based upon CPLR 510 (2), which permits a change of venue where "there is reason to believe that an impartial trial cannot be had in the proper county." The Becker defendants ground their motion in the "ends of justice" authority found in CPLR 510 (3), but essentially proffer the same contentions and caselaw as the other movants.

"To obtain a change of venue pursuant to CPLR 510 (2), a movant must produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed." (Miller-Frankel v Frankel, 93 AD3d 826, 827 [2d Dept 2012]; see also Matter of Michiel, 48 AD3d 687, 687 [2d Dept 2008]; Behrins & Behrins, P.C. v Chan, 40 AD3d 560, 560 [2d Dept 2007]; Jablonski v Trost, 245 AD2d 338, 339-40 [2d Dept 1997].) "[C]onclusory allegations, beliefs, suspicions, and feelings of possible bias or the appearance of impropriety" are insufficient. (See Matter of Michiel, 48 AD3d at 687-[*4]88; Behrins & Behrins, P.C. v Chan, 40 AD3d at 560-61; Jablonski v Trost, 245 AD2d at 340.)

Despite this rather high evidentiary burden and the focus on partiality, at least where a party has a relationship to the judiciary the Second Department caselaw also looks to "protection of the court from even a possible appearance of impropriety" (see Miller-Frankel v Frankel, 93 AD3d at 827; see also Saxe by Saxe v OB/GYN Assocs., P.C., 86 NY2d at 822 ["concerns about the appearance of impropriety"]; Golia v Petze, 56 AD3d 611, 611 [2d Dept 2008] ["slightest suspicion as to the fairness of the proceedings"]; Amann v Caccese, 223 AD2d 663, 663-64 [2d Dept 1996]; Krupka v County of Westchester, 160 AD2d 681, 682 [2d Dept 1990]; Milazzo v Long Is. Light. Co., 106 AD2d 495, 496 [2d Dept 1984]; Arkwright v Steinbugler 283 AD 397, 399 [2d Dept 1954] ["slightest ground for suspicion as to the fairness of the trial"].)

The formulations of the standard for a change of venue pursuant to CPLR 510 (2) not only impose quite disparate evidentiary burdens on the movant, they seem to focus the court's inquiry on somewhat different, although certainly compatible, underlying interests. Although impartiality and fairness on one hand, and the absence of an appearance of impropriety on the other, are related (see Warm v State of New York, 265 AD2d 546, 547 [2d Dept 1999]), the former primarily serve the individual interests of the parties in the particular proceeding, whereas the latter furthers institutional interests of the judiciary inherent in all cases.

One may appropriately conclude from a review of the opinions that, on a motion to change venue pursuant to CPLR 510 (2), both the individual and institutional interests in impartiality, fairness, and the avoidance of an appearance of impropriety are to be recognized, and necessarily weighed against the individual and institutional interests in access to the courts and a proper and convenient forum. One may also appropriately conclude that on these issues, as on many others, the trial court must pay attention at least as much to what the appellate courts are doing as to what they are saying.

Here, however, there is the threshold issue of timeliness. It seems clear that, were these motions to change venue based upon CPLR 510 (1) or 510 (3), they would be denied as untimely, (See CPLR 511 [a]; Mena v Four Wheels Co., 272 AD2d 223 [1st Dept 2000]; Schwarz v Armand Erpf Estate, 232 AD2d 316, 317 [1st Dept 1996]; Lalka v Massafra, 167 AD2d 265, 266 [1st Dept 1990]; Hillegass v Duffy, 104 AD2d 969, 971 [2d Dept 1984].)

Perhaps because motions to change venue based upon CPLR 510 (2) are usually made soon after the action is commenced, the Court could find only one appellate decision that addresses the timeliness of such a motion. The plaintiff in Milazzo v Long Is. Light. Co. (106 AD2d 495) was a law secretary to two Justices in Supreme Court, Kings County. The defendant "waited over four years after learning of this relationship before making its motion on the eve of trial." (See id. at 495-96.) The Second Department stated, "This cannot be considered a reasonable time after commencement of the action' " (see id. at 496 [citing CPLR 511 (a)]), but, nonetheless, without saying more, proceeded to consider the motion on its merits.

One can only speculate as to the reason(s) the court, in effect, ignored a determination [*5]that the motion was untimely under the statute. It appears clear, however, perhaps because of the institutional interests that must be acknowledged on a motion to change venue pursuant to CPLR 510 (2), such a motion should not be denied solely on the ground of untimeliness. That is not to say, however, that the implications of the movant's delay must be ignored, particularly as they relate to the strength of its own interests.

Looking, then, at what the appellate courts have done on motions for a change of venue pursuant to CPLR 510 (2), it seems clear that where a party is a sitting judge in the court or county, the motion will be granted. (See Saxe by Saxe v OB/GYN Assocs., P.C., 86 NY2d 820; Golia v Petze, 56 AD3d 611; Kavelman v Taylor, 245 AD2d 9 [1st Dept 1997]; Rothwax v Spicehandler, 161 AD2d 184 [1st Dept 1990]; DeLuca v CBS Inc., 105 AD2d 770 [2d Dept 1984]; Midonick v Peppertree Hill Dev. Corp., 49 AD2d 721 [1st Dept 1975]; Seifert v McLaughlin, 15 AD2d 555 [2d Dept 1961].) The results were mixed in two cases involving retired justices, but both cases presented rather particular facts. (See Pruitt v Patsalos, 2012 NY Slip Op 4986 [2d Dept 2012]; Lubitz v Mehlman, 166 AD2d 212 [1st Dept 1990].)

Where the party is the spouse or child of a sitting judge in the court or county, the motion will probably be granted. (See Amann v Caccese, 233 AD2d 663 [2d Dept 1996] [child]; Burstein v Greene, 61 AD2d 827 [2d Dept 1978] [spouse]; see also Miller-Frankel v Frankel, 93 AD3d 826 ["close familial relationship"].) But a transfer is not inevitable. (See Handler v 1050 Tenants Corp., 295 AD2d 238 [1st Dept 2002] [spouse].) And the motion will likely be denied where the judge is retired. (See Dontzin v Digital Rain Partners I, L.L.C., 295 AD2d 140 [1st Dept 2002] [child]; Lombardoni v Boccaccio 160 AD2d 1089 [3d Dept 1990] [child].)

Where the party is a relative of a law clerk, the motion to transfer will also likely be denied. (See Cohen v Bernstein, 9 AD3d 573 [3d Dept 2004] [spouse/stepchild]; Lockler v 670 Apartments Corp., 232 AD2d 176 [1st Dept 1996] [spouse]; see also Krupka v County of Westchester, 106 AD2d 681 ["Family Court employee who works in the building where the trial is to be held"].)

The last-cited caselaw is, of course, particularly significant, since it indicates that, if Allen Cohen were the only plaintiff in this case, the motions for change of venue would more likely be denied. In Lockler v 670 Apartments Corp. (232 AD2d 176), the First Department held that "Defendant has not made the requisite showing demonstrating that the fact that the plaintiff's wife is a law clerk to a justice of the Supreme Court in this county would present a strong possibility that an impartial trial cannot be had here" (see id.) The attempt to distinguish Lockler because it is a decision of the First Department cannot be accepted. Whatever other differences some might see between Manhattan and the so-called "outer boroughs," the propriety of judicial action is in no way affected by the East River.

The question becomes whether the result should be different because Allen Cohen's wife not only is Law Secretary to a Justice of the Supreme Court in this county, but has also asserted a derivative claim. Again, in Milazzo v Long Is. Light. Co., (106 AD2d 495), the plaintiff was a [*6]law secretary to two justices in the Supreme Court, Kings County. On the defendant's motion to transfer venue out of Kings County, the Second Department said, "Not every relationship with a Justice necessitates disqualifying the entire court . . . , and the decision to grant or deny a motion to change venue generally rests in the sound discretion of the trial court." (See id. at 496.) "Nevertheless, to avoid any appearance of impropriety," the court believed the action should be transferred out of Kings County. (See id.)

Milazzo cannot be read as holding that in all cases where a plaintiff is a law secretary in the court in which the action is pending, the action must be transferred. The only "facts" found in the opinion are the defendant's assertions that the plaintiff had a confidential relationship with two Justices and "presumably knows many of the Justices in that court and sees and works with them on a frequent basis" (see id. at 495.) Here, Ms. Cohen submits an affidavit in which she asserts that she has "reviewed the roster of Judges for Supreme Court Kings County's Civil Term," and that she "know(s) approximately 16 of the Judges, but do[es] not know approximately 32 of them."

For approximately two years after learning of Ms. Cohen's employment as Justice Bunyan's Law Secretary, the moving Defendants apparently had no concern about receiving a fair trial, as well as fair pre-trial proceedings, in Kings County Supreme Court, nor did the possibility of impropriety appear to them, so as to suggest to them further inquiry about Ms. Cohen's relationship with the other justices of the court. Although the Court will accept as accurate counsel's assertion that their concerns arose upon Justice Jacobson's recusal, the recusal of a single justice among more than 30 is neither evidence of the possibility of partiality nor the "appearance" of anything other than the exercise of that justice's discretion. Indeed, this Court sees no reason for recusal, since not a single word has ever been exchanged with Ms. Cohen.

The Court has noted moving Defendants' concern that in October 2011 Ms. Cohen was named "employee of the year" in the category of principal law clerk, and that, in that connection, her picture is displayed at the main entry level of the courthouse at 360 Adams Street. The picture certainly will be, or can be, removed before the trial in this action, and, in any event, this Court is located at 320 Jay Street.

In short, there is virtually nothing other than Ms. Cohen's employment as Law Secretary to a Justice of this court that can be pointed to as a basis for transferring her husband's medical malpractice claim and her derivative claim from the proper and most convenient forum for all of the parties. There is simply no "factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained" in Kings County (see Miller-Frankel v Frankel, 93 AD3d at 827.) Nor is there any basis for "even a possible appearance of impropriety" (see id.), otherthan what one might conjure simply from Ms. Cohen's employment status. That status will not change before a judge in Queens who does not know her from that before a judge in Brooklyn who does not know her.

The Court finds no warrant to transfer this action from the proper and most convenient [*7]forum solely because of the employment status of a plaintiff with a derivative claim. Indeed, for a period of approximately two years up to the eve of trial, neither did Defendants. Surely, elusive "appearances" should not require a choice between a proper and convenient forum for Mr. Cohen or the maintenance of a derivative claim by his spouse. Impartiality and fairness inhere as much in treating all the same as in identifying reasons to treat some of them differently.

Defendants' respective motions are denied. Since the Court is unaware of any ground for a motion to "retain" venue, Plaintiffs' cross-motion too is denied.

July 5, 2012___________________

Jack M. Battaglia

Justice Supreme Court