Berenguer v Doyle

[*1] Berenguer v Doyle 2004 NY Slip Op 51790(U) Decided on November 19, 2004 Supreme Court, New York County Schlesinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2004
Supreme Court, New York County

CHRISTIAN BERENGUER, an infant, by his father and natural guardian, GEORGE BERENGUER, and GEORGE BERENGUER, Individually, Plaintiffs,

against

SHEVAUN MACKIE DOYLE, M.D., and COLLEEN FAY, M.D., Defendants.



107259/04

Alice Schlesinger, J.

On October 25, 2003, plaintiff Christian Berenguer, presently aged 10, was injured when he fell in a hole on a football field in Westchester County. The infant suffered a mid-shaft fracture of the right femur and was admitted to White Plains Hospital where he was treated for the injury he sustained. The infant plaintiff came under the care of the defendants Dr. Shevaun Mackie Doyle and Dr. Colleen Fay at White Plains Hospital beginning October 25, 2003 and continuing after his discharge on November 7, 2003 through May 5, 2004. Subsequently, on or about May 6, 2004, plaintiff's father and natural guardian filed suit on behalf of himself and the infant alleging medical malpractice by these defendants.

The defendants Dr. Doyle and Dr. Fay have moved herein for an order to change venue from New York County to Westchester County pursuant to CPLR §§510, Subd. 1 and 511. They argue that a trial in New York County would cause party and witness inconvenience since Dr. Fay's principal place of business is in Westchester County, and the various other physicians who may be called as witnesses also practice in Westchester County. Plaintiffs oppose this motion by arguing that (1) the action is properly venued in New York County since Dr. Fay has an office at 240 East 18th Street, New York, NY where she sees patients and performs other actions related to her practice of medicine, and (2) the defendants have failed to provide sufficient justification for a discretionary change of venue for the convenience of witnesses.

For the reasons set forth herein, defendants' motion is denied.

The Rules Governing Venue Selection

In New York, the place of trial shall be in the county designated by the plaintiff unless the court orders a change in response to defendant's motion or both parties agree to change venue. CPLR §509. Pursuant to CPLR §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; or [*2]

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.

If a defendant seeks to change venue as of right based on improper county under CPLR §510, subd. 1, the defendant must follow the steps set forth in CPLR §511. Specifically, the defendant must serve a demand for a change of venue on the plaintiff with or prior to the answer to the complaint. CPLR §511(a). If the plaintiff does not consent to the proposed change within five (5) days of such a demand, the defendant then has fifteen (15) days to move for a change of venue. CPLR §511(b). If the defendant fails to follow this procedure, the defendant is no longer entitled to a change of venue as of right, but may still ask the court in its discretion to change venue under either subdivision 2 or 3 of Section 510 quoted above. Siegel, D., New York Practice, §123 (3rd ed. 1999).

In the instant case, defendants acknowledge that they did not serve a demand to change venue along with the answer and follow the demand procedure. Therefore, although defendants in their notice of motion request relief pursuant to CPLR §510, subd. 1, that section cannot serve as a basis to change venue here since the motion is untimely. Indeed, defense counsel admits in her reply affirmation (at ¶3) that this motion may only seek discretionary relief pursuant to CPLR §510, subd. 3.

Change of Venue based on Witness Convenience

CPLR §510, subd. 3, states 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). However, it is not enough for a party 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;

(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.

Cardona v. Aggressive Heating Inc., 180 AD2d 572 (1st Dep't 1992); see also Kraft v. Kamalian, 290 AD2d 264 (1st Dep't 2002), citing O'Brien v. Vassar Bros. Hosp., 207 AD2d 169 (2nd Dep't 1995). Only after such a detailed evidentiary showing that material witnesses would in fact be inconvenienced will a change of venue be granted. Hernandez v. Rodriguez, 5 AD3d 269 (1st Dep't 2004).

In the instant case, defendants satisfy the first element of the showing by providing in their initial moving papers a list identifying a number of potential witnesses. Defendants also provide a Westchester address for each listed potential witness, seemingly to suggest that they will be [*3]inconvenienced by a trial in New York County. However, the moving party also 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 AD2d at 572. The need to travel from one county to another does not, standing alone, give rise to a presumption of inconvenience. 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 AD2d 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); Maynard v. Oakes, 144 AD2d 229 (3rd Dep't 1988) (in our mobile society, a drive of some 2½ hours is not a matter of much inconvenience).

Here, defendants have failed to provide a showing from any named potential witness that the witness would be inconvenienced if the trial were to proceed in New York County. The moving papers fail to include any affidavits from any of the named witnesses attesting to the alleged inconvenience. The only affidavit in support of defendants' motion is from Dr. Fay who states that her principal place of business is in Westchester County. However, Dr. Fay's principal place of business is merely a factor which the courts may take into consideration. In that regard, it is noteworthy that Dr. Fay admits to traveling to New York County at least once a month for her clinical appointment at New York University Medical Center. Although defendants stress that these trips to New York County are limited to only about four (4) hours once a month, 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 AD2d 424, 425-26 (1st Dep't 2003), citing Rollinson v. Pergament Acquisition Corp., 228 AD2d 186 (1st Dep't 1996) and Cilmi v. Greenberg, 273 AD2d 266 (1st Dep't 2000).

Furthermore, defendants have failed to make any showing that defendants have made contact with any of the named potential witnesses and confirmed that they are able and willing to testify. In order to establish inconvenience of witnesses, "it is necessary at least to contact them". Carrozza, 292 AD2d at 279, quoting MacRobbie v. Olivio, 200 AD2d 273, 274 (1st Dep't 1994).

Defendants in their motion also fail to show the nature and manner in which the anticipated testimony is material to the issues. The defendants attempt to cure the defect by providing the medical records of the infant plaintiff and asserting that "it is clear that the material witnesses in this case are all physicians and healthcare providers in Westchester County and the substance of their testimony will be based on their treatment of the infant plaintiff and their documentation in the [various] records." (Reply Aff. ¶ 6). The attempt is unavailing. Although the medical records may indicate that the named potential witnesses were all treating healthcare providers, there is no evidence or explanation as to the nature of the testimony that would be given and how that testimony would shed light on the issues of alleged medical malpractice. What is more, there is no indication that the witnesses were ever contacted to confirm their willingness to testify. Goldberg v. Bivins, 295 AD2d 162 (1st Dep't 2002).

Wholly unpersuasive is defendants' attempt in the Reply Affirmation to distinguish the instant case from some of the cases cited by plaintiff (many of which are relied upon herein) and to argue that she has met all the elements required under Cardona, supra. As discussed above, the defendants have failed to make any evidentiary showing that the potential witnesses have been contacted, that they are willing to testify as to issues material [*4]and necessary to this action, and that it would be an inconvenience for them to travel approximately 45 minutes to testify in New York County.

Accordingly, it is hereby

ORDERED that defendants' 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 November 24, 2004 at 10:30 a.m. for a preliminary conference.

This constitutes the decision and order of the Court.

Dated: November 19, 2004

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J.S.C.