Ayers v Mohan

Annotate this Case
[*1] Ayers v Mohan 2019 NY Slip Op 29159 Decided on May 30, 2019 Supreme Court, Bronx County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 30, 2019
Supreme Court, Bronx County

Duvar Ayers and OCTAVIA AYERS, Plaintiffs,

against

Avinash Mohan, MD, ROBERT FEKETE, MD, BRUCE ZABLOW, MD, RAUL ULLOA, MD, CORRECT CARE SOLUTIONS, LLC, and ST. BARNABAS HOSPITAL, Defendants.



23311/13



Attorney for Plaintiffs

Marvin D. Fuhrman, Esq.

Wolf & Fuhrman, LLP

1453 Webster Avenue

Bronx, New York 11565

(718)293-0980

Attorney for Dr. Mohan & Dr. Fekete

Bridget K. Dahle, Esq.

Brown, Gaujean, Kraus & Sastow, PLLC

White Plains Plaza

One North Broadway - Suite 1010

White Plains, New York 10601

(914)949-5300

Attorney for Dr. Zablow

McCallion L. Campbell, Esq.

Heidel, Pittoni, Murphy & Bach

81 Main Street

White Plains, New York 10601

(914)559-3100

Attorney for Dr. Ulloa & Correct Care

Gaines, Novick, Ponzini, Cossu et al

11 Martine Avenue, 8th Floor

White Plains, New York 10606
Joseph E. Capella, J.

The following papers numbered 1 to 4 read on this motion, noticed on March 4, 2019, and duly submitted on April 3, 2019.



PAPERS

NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1

ANSWERING AFFIDAVIT AND EXHIBITS 2, 3

REPLY AFFIDAVIT AND EXHIBITS 4

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

The instant medical malpractice action was commenced September 13, 2013, and venue was designated as Bronx County based on the Bronx residence of plaintiff, Octavia Ayers. The plaintiffs moved to Schenectady County in 2014, and in January 2019, a stipulation of discontinuance as to defendant, St. Barnabas Hospital, was filed with the Court. By notice of motion, the defendants, Avinash Mohan, MD, and Robert Fekete, MD (movants), seek to change venue to Westchester County pursuant to CPLR § 510(1) on the ground that venue as designated is no longer proper (emphasis added) given that none of the remaining parties are Bronx County residents, and the alleged malpractice occurred in Westchester County.

According to CPLR § 510(1), the court may change the place of trial where the county designated for that purpose is not a proper county, and CPLR § 511 provides that a motion to change venue shall be made within a reasonable time after commencement of the action. There is no dispute that the alleged injuries occurred in Westchester County, and the hospital and prison personnel who treated plaintiff, Duvar Ayers, are all located in Westchester County. According to the movants, now that the sole remaining party (i.e., St. Barnabas Hospital) with a Bronx County residence is no longer in the case, a change of venue is warranted. In other words, venue is allegedly no longer proper in Bronx County because none of the remaining parties reside in Bronx County. Lastly, the movants allege that they made the instant motion within a reasonable time after the action was discontinued against St. Barnabas, the sole remaining Bronx resident. In opposition, the plaintiffs argue that this issue was already addressed in a previous decision in this action, that the initial designation of Bronx County was proper given plaintiff, Octavia Ayers, residence at the time (CPLR § 503(a)) and therefore a change pursuant to CPLR § 510(1) is improper, and that the cases relied upon by movants are not applicable. First as to plaintiffs' res judicata argument, on June 5, 2015, the Hon. Stanley Green rendered a decision in which he found, inter alia, that "venue in Bronx County, based upon plaintiff's residence at the time this action was commenced, is proper." This is clearly res judicata that the initial venue selection [*2]was proper; however, the movants are arguing something slightly different — that a subsequent change in plaintiffs' residence and the dismissal of the sole remaining Bronx defendant are enough to support a CPLR § 510(1) change of venue motion.

CPLR § 510 provides three specific grounds for a change of venue motion. First, that the county designated for that purpose is not a proper county, second, that there is reason to believe that an impartial trial cannot be had in the proper county, and third, that the convenience of material witnesses and the ends of justice will be promoted by the change. Here, in support of their argument that a change of venue pursuant to CPLR § 510(1) (i.e., that the county designated is not proper) is warranted once none of the remaining parties are residents of the original designated county, the movants rely on Canaan v Costco, (49 AD3d 583 [2nd Dept 2008]), Gennarro v Grossfeld, (186 AD2d 718 [2nd Dept 1992]), Caplin v Ranhofer, (167 AD2d 155 [1st Dept 1990]), and Mitts v HIP, (104 AD2d 318 [1st Dept 1984]). In Canaan, a premises liability action, venue was originally designated as Kings County based on the residence of defendant, Costco Membership. (49 AD3d 583.) However, Costco Membership was granted summary judgment and dismissed from the action after establishing that it did not own, control, occupy, maintain, manage or possess the property where the injured plaintiff fell. The Second Department in Canaan held that since Costco Membership was the only party whose presence supported a Kings County venue, the remaining defendant, Costco Wholesale Corporation, appropriately demonstrated that venue should be changed to plaintiff's residence, Westchester County. (49 AD3d 583.) Although the Canaan decision does not reference the specific subsection under CPLR § 510 that was relied upon, this Court is satisfied that Canaan addressed CPLR § 510(1) and those instances in which the original county designated for venue was not the proper county.

As for Gennarro, the Second Department in that action was not called upon to address a CPLR § 510(1) change of venue motion, but instead dealt with the convenience of material witness pursuant to CPLR § 510(3). (186 AD2d 718.) In Caplin, venue was placed in New York County solely based on the residence of defendant, New York Hospital. (167 AD2d 155.) Ultimately, New York Hospital was granted summary judgment and dismissed from the action, and the First Department held that "inasmuch as New York Hospital should not have been a party in the case, venue is not properly laid in New York County." (Id. at 158.) Similar to Canaan, (49 AD3d 583), the Caplin decision does not reference the specific subsection under CPLR § 510 that was relied upon. However, this Court is satisfied that just as the Second Department did in Canaan, the First Department in Caplin addressed CPLR § 510(1) and those instances in which the original county designated for venue was not the proper county.

In Mitts, a medical malpractice action, the First Department held that defendant, HIP, did not treat or render medical services, and could not be held liable for the actions of co-defendant-medical group. (104 AD2d 318.) And given that venue was initially placed in New York County based solely on the residence of HIP, the First Department changed the venue to Queens County where all of the remaining parties were residents. Similar to Canaan and Caplin, the Mitts decision does not reference the specific subsection under CPLR § 510 that was relied upon. But it is clear to this Court that Mitts likewise addressed CPLR § 510(1) and those instances in which the original county designated for venue was not the proper county. Therefore, in each of these decisions, Canaan, Caplin and Mitts, the Courts determined that the party upon whom [*3]venue was initially predicated upon should not have been a party in the action, and as such, the original county designated was not proper pursuant to CPLR § 510(1). And it appears that the First Department has consistently adhered to this holding in various other decisions, such as Gramazio v Borda, (181 AD2d 428 [1992]) (given the dismissal of defendant, Aetna, venue was transferred to Suffolk County where all of the remaining parties reside), Baulieu v Ardsley, (85 AD3d 554 [2011]) (venue in New York County was predicated solely upon defendant, ISJ, and once ISJ was dismissed from the action, venue was transferred to Westchester County, which is the remaining parties' residence) and Villanueva v 80-81, (141 AD3d 433 [2016]) (venue changed once the complaint was dismissed against both defendants whose principal place of business formed the basis for venue in Bronx County).[FN1] None of these decisions support the movants' argument that a subsequent change in the residence of a party upon whom venue was originally and properly predicated on (and where the change is to an entirely different venue), would somehow support a change of venue pursuant to CPLR § 510(1).

Based on the aforementioned, the Court finds no basis upon which to grant the movants' request to change venue pursuant to CPLR § 510(1), and as such the Court need not address the timeliness of the relief sought. The motion is denied accordingly, and the plaintiffs are directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.



Dated 5/30/19

_______/S/______________

Hon. Joseph E. Capella, J.S.C. Footnotes

Footnote 1:The co-defendant, Bruce Zablow, MD, erroneously relies upon Kim v Flushing, (138 AD2d 252 [1st Dept 1988]), to support movants argument; however, Kim addresses CPLR § 510(3) and the convenience of material witnesses and the ends of justice. It does not address CPLR § 510(1).