Lang v Fernquist

[*1] Lang v Fernquist 2006 NY Slip Op 51997(U) [13 Misc 3d 1226(A)] Decided on October 20, 2006 Supreme Court, Onondaga County Greenwood, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2006
Supreme Court, Onondaga County

William R. Lang, Jr., Plaintiff,

against

Darlene V. Fernquist, the Town of Union, New York, the Town of Maine, New York, the Village of Endicott, New York, the Board of Education of the Maine-Endwell School District, Endicott, New York and the Maine-Endwell Transportation Department, Maine, New York, Defendants.



2006-3700



JOANNE VAN DYKE, ESQ., OF COTE, LIMPERT & VAN DYKE, LLP

for Plaintiff

JAMES A. MEGGESTO, ESQ., OF MEGGESTO, CROSSETT & VALERINO, LLP

For Defendants Fernquist, Maine-Endwell School District

CRAIG S. BETTER, ESQ., OF LYNCH LAW OFFICE

for Defendant Town of Maine

Donald A. Greenwood, J.

This action was commenced for personal injuries suffered by the plaintiff in a two vehicle accident in Syracuse, New York. The plaintiff alleges that a vehicle driven by defendant Fernquist and owned by the defendants struck the vehicle being operated by the plaintiff. The claims against the town defendants are for negligent operation and use of a vehicle, as well as negligent hiring, training and supervision.

The Town of Maine has moved to dismiss the complaint against it on the ground that the Town of Maine did not own, control or maintain the vehicle being driven by Fernquist and that Fernquist was not an employee or agent of Maine. The plaintiff does not oppose this motion to [*2]dismiss and also discontinues the action against the Town of Union. As such, the motion is granted.

Likewise, the plaintiff's motion to amend the complaint to substitute the name "Maine- Endwell Central School District" for "Board of Education of Maine-Endwell School District" is not opposed by that defendant and the motion is therefore granted.

Remaining before the Court is the cross-motion by defendants Fernquist and Maine-Endwell School District to change the venue in this matter. The defendants move pursuant to CPLR §504(2), which requires that the place of trial in all actions against school districts be in the county in which such school district is located. See, CPLR §504(2). These defendants argue that inasmuch as the subject school district is located entirely within Broome County, Onondaga County is an improper county for venue. Defendants made the proper statutory demands for a change of venue and the plaintiff has refused. Plaintiff argues that venue was properly placed within Onondaga County based upon her residence, the site of the accident, the convenience of the witnesses and the interest of justice. Plaintiff further argues that the statute does not apply to defendant Fernquist, as an individual, and moreover that the section is not a mandatory standard. In fact, the court has discretion to place venue in a place other than where the school district is situated if the convenience of the witness outweighs the purpose of the statute, which is to protect governmental entities from inconvenience. See, Palacios v. Lake Carmel Fire Department, 308 AD2d 518 (2d Dept. 2003). In the absence of compelling circumstances, however, courts should comply with the statutory direction. See, Powers v. East Hudson Parkway Authority, 75 AD2d 776 (1st Dept. 1980). In the balancing of interests, the convenience of public employees and officers and the use of public records at trial are entitled to more than ordinary consideration. See, id.

In arguing that the convenience of the witnesses outweighs the statutory purpose here, the plaintiff offers affidavits from four physicians and a nurse practitioner, each of whom attest that it would not only be inconvenient, but difficult and costly for them to travel to Broome County to testify in the case. The proof is fatally defective, however, inasmuch as the plaintiff has failed to disclose the facts to which the witnesses will testify and to demonstrate the materiality thereof to plaintiff's case. See, Merrill v. City of New York, 16 AD2d 1004 (3d Dept. 1962). This requirement is imposed so that the court may judge whether proposed evidence of the witnesses is necessary and material. See, O'Brien v. Vassar Brothers Hospital, 207 AD2d 169 (2d Dept. 1995). The plaintiff fails to set forth the substance of the witnesses' testimony or to demonstrate the materiality thereof to his case. Moreover, the plaintiff fails to show the existence of any compelling circumstances to deviate from the statutory direction. Plaintiff's assertion with respect to the convenience of the physicians is less than compelling inasmuch as the videotaping of testimony prior to trial is common practice. As such, the defendants' motion to change venue is granted.

NOW, therefore, for the foregoing reasons, it is hereby

ORDERED, that the motion by the defendant Town of Maine to dismiss the complaint against it is granted without objection, and it is further

ORDERED, that the plaintiff's cross-motion to amend the complaint to substitute the name "Mane-Endwell Central School District" for "Board of Education of Maine-Endwell [*3]Central School District" is granted without opposition, and it is further

ORDERED, that the motion of defendants Fernquist and Maine-Endwell Central School District to change venue is granted.

ENTER

Dated: October 20, 2006 Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice