Matter of S.A.W.

[*1] Matter of S.A.W. 2007 NY Slip Op 51036(U) [15 Misc 3d 1138(A)] Decided on May 22, 2007 Supreme Court, Rockland County Weiner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2007
Supreme Court, Rockland County

In the Matter of S.A.W., an Incapacitated Person pursuant to Article 81 of the Mental Hygiene Law



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To:

Madaleine S. Egelfeld, Esq.

Attorney for Successor Co-GuardiansDavid A. Smith, Esq., PLLC

Attorney for H.W.

Alfred J. Weiner, J.

[*2]Since the submission of this motion, the Court was advised that movant withdrew her request to remove the successor co-guardians and for the appointment of a replacement guardian, leaving only that portion of the motion that seeks a change of venue from Rockland County to Nassau County to be decided, along with Respondent's cross-motion to award the successor co-guardians attorney's fees and imposing sanctions

In support of her motion to change venue, movant contends that this proceeding was commenced in Rockland County only because S.A.W. was a patient at a Rockland County rehabilitation facility at the time the proceeding was commenced. Movant states that in April 2003 S.A.W. was moved back to Nassau County where he has lived continuously since. Movant also lives in Nassau County and she further contends that there is no remaining nexus between any of the parties to this proceeding and Rockland County. The additional cost of litigating in a county distant from where the parties live further adds to the expense of litigation.[FN1] Movant further argues that there is nothing about the history of this proceeding that warrants "continuity" before one Judge.

The co-guardians oppose the motion contending there is no legal basis for a change in venue. Respondents state that the legal authority cited by movant relates to the placing of venue at the time of the initiation of this proceeding and is inapplicable to this proceeding, now six years old. Respondents also believe that the request for a change in venue is sought as a subterfuge for movants' "...forum shopping..." and that the motion was made with the hope of getting "...better rulings..." in another county. Respondents also contend that this Court should deny movant's request since it is familiar with the background of this matter. The co-guardians also ask that the motion be denied since there is a contested Final Accounting proceeding pending before the accounting part of this Judicial District located in Westchester County. Respondents contend that since there is no legal basis for a change in venue, movant's motion is frivolous and that counsel fees should be awarded and that sanctions should be imposed.

Section 510 of the Civil Practice Law and Rules provides: CPLR §510 Grounds for change of place of trial.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; or2. there is reason to believe that an impartial trial cannot be had in the proper county; or3. the convenience of material witnesses and the ends of justice will be promoted by the change.

It is undisputed that at the time the proceeding was commenced, it was proper to initially [*3]place venue in Rockland County. Mental Hygiene Law §81.05. Accordingly, to change venue it is incumbent upon movant to show there is: (1) reason to believe that an impartial trial can't be had in Rockland County, or (2) that the convenience of material witnesses and the ends of justice will be promoted by a change in venue. Since movant has not suggested that an impartial trial cannot be had, it follows then that the sole legal basis for this Court to grant movant's request would be "....the convenience of material witnesses and the promotion of the ends of justice."

It has been held that a motion for a change of venue based upon the convenience of witnesses requires a detailed affidavit from the moving party setting forth "...what he expects to prove by the alleged witnesses, and that he cannot safely proceed to trial without the testimony of such witness, as he is advised by his counsel". Dairymen's League Co-op. Ass'n v. Brundo, 131 Misc. 548 (Sup.Ct., Oneida County, 1927). One cannot merely allege that a change in venue of an otherwise properly venued' action is necessary for the convenience of witnesses. Convenience does not necessarily equate with close proximity to the courthouse. A factual basis for the motion on the grounds alleged must be provided. Geneva Trust Co. v. Boston & Maine R. R., 212 AD 695; Sanders v. Prescott, 234 AD 899; Dairymen's League Co-operative Assn. v. Brundo, supra.

The mere recital that movant and S.A.W. live in Nassau County and that "...there is no remaining nexus whatever between any of the parties to this proceeding and Rockland County"[FN2] does not substantively satisfy movant's burden of proof. Accordingly, the Court finds that movant has failed to sustain her burden in establishing that the convenience of material witnesses and the ends of justice will be promoted by a change of venue. Movant's motion for a change of venue is, therefore, DENIED.

The successor co-guardians cross-motion seeks an award of attorneys fees and the imposition of sanctions contending that, by making the motion, movant engaged in "frivolous conduct" as that term is defined in the Uniform Trial Court Rules.

22 NYCRR §130-1.1(c) of the Uniform Trial Court Rules defines conduct as being frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or(3) it asserts material factual statements that are false.

Since there has been no showing that paragraphs (2) and (3) of 22 NYCRR §130-1.1(c) are applicable, the issue remains as to whether movant's application was "...completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law."

Although counsel for the successor co-guardians set forth a persuasive argument in opposition to the motion for a change in venue, the Court finds that virtually no specific and well-founded reasoning was set forth for the imposition of sanctions based upon the premise that movant's application was "...completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law." Intercontinental Credit Corp. v Roth 78 NY2d 306,1991. The mere fact that movant's motion was unsuccessful does not, ipso facto, permit the imposition of sanctions since there was no showing that the motion was "completely without merit", etc. Accordingly, the successor co-guardians' motion for the imposition of sanctions is also DENIED. The Court further denies - for the same reason - their motion for counsel fees.

Dated:New City, New York

May 22 , 2007

E N T E R:

__________________________

HON. ALFRED J. WEINER

Justice of the Supreme Court Footnotes

Footnote 1: It is noted that movant's attorney's office is in Nassau County and the office for the attorney for the successor co-guardians is in Queens County.

Footnote 2: H. W. affidavit, December 19, 2006, par. 39