Leban v Su

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[*1] Leban v Su 2022 NY Slip Op 51162(U) Decided on November 23, 2022 Supreme Court, Bronx County Capella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2022
Supreme Court, Bronx County

Joanna Leban, Plaintiff,


Marina Su, O.D., Mark D. Fromer, M.D., and
Mark D. Fromer, M.D., P.C. d/b/a Fromer Eye Centers, Defendants.

Index No.: 31014/17

Plaintiff' Attorney
Silver & Kelmachter, LLP
Elena Carter, Esq.
11 Park Place, Suite 1503
New York, New York 10007

Dr. Su's Attorney
Bartlett LLP
Robert Devine, Esq.
170 Old Country Road
Mineola, New York 11501
(516)877-2900 Joseph E. Capella, J.

The following papers numbered 1 to 5 read on this motion.




Motion by defendant, Marina Su, O.D., to change venue (CPLR 511) from Bronx County to New York County is granted. The instant medical malpractice complaint, dated November 16, 2017, designated Bronx County as the place of trial, and it states that the basis for this venue is "[p]lace where negligence occurred." (CPLR § 503.) According to the bill of particulars, [*2]defendant, Dr. Fromer, was negligent in failing to properly repair plaintiff's left eye retinal attachment. It goes on to allege that the location of this negligent act was at the Bronx office of defendant, Marc D. Fromer, M.D., P.C. (Fromer Eye Centers), whose principal place of business is New York County. According to plaintiff, during the discovery stage of this action it became clear that "the gravitas of [p]laintiff's case will focus on the care rendered to [plaintiff] by Marina Su, O.D.," an employee of Fromer Eye Centers. In November 2021, Dr. Fromer moved for summary judgment (CPLR 3212) and dismissal of the action as against him, which was granted unopposed. Dr. Su is the sole remaining defendant-doctor in this medical malpractice action, and according to her, all of the care and treatment she provided to plaintiff took place at the New York office of Fromer Eye Centers. Given Dr. Fromer's removal from the action, and the change regarding where the negligence occurred, Dr. Su now moves to transfer venue (CPLR 511) to New York County. Plaintiff cross moves to retain Bronx County as the venue for this action.

The venue designated on a complaint is generally the county in which one of the parties resides, or the county in which a substantial part of the events or omissions giving rise to the claim occurred. (CPLR § 503(a).) As previously mentioned, plaintiff designated Bronx County because purportedly this was the place where the negligence occurred. In opposition to the motion, there is no affidavit from plaintiff to dispute that all of the care and treatment rendered by Dr. Su took place at the New York office. Instead, the opposition notes that any defendant(s) who believes venue is improper is obligated under CPLR 511 to serve upon plaintiff a written demand to change venue either before or with their answer. According to plaintiff, as Dr. Su did not make a demand to change venue prior to or with her answer, her motion to change venue is not timely. (Kurfis v Shore Towers, 48 AD3d 300 [1st Dept 2008].) In addition, plaintiff correctly notes that CPLR § 510 provides three grounds for change of venue: (1) the county designated is not proper, (2) there is reason to believe that an impartial trial cannot be held in the proper county, or (3) the convenience of witnesses. Plaintiff goes on to note that Dr. Su failed to state in her motion which of the aforementioned ground(s) she is relying upon to change venue. It should be noted, however, that there is no discussion of impartial trial or convenience of witnesses in Dr. Su's motion. Lastly, plaintiff argues that although Dr. Fromer is no longer in the action, designating Bronx County was proper because Fromer Eye Centers is still in the action, and it has an office in the Bronx where plaintiff received care and treatment.

Clearly Dr. Su believes that the county designated by plaintiff is no longer proper given the removal of Dr. Fromer from this action, and her unchallenged assertion that she only treated plaintiff at the New York office. (CPLR § 510(1).) The dismissal of a party in a multi-party action does provide a basis for a discretionary change in venue even where there has been no timely written demand for same. (Bonilla v Tishman, 100 AD3d 673 [2nd Dept 2012]; Schulz v New York State Legislature, 252 AD2d 717 [3rd Dept 1998], appeal dismissed 92 NY2d 967 [1998].) And it is well-settled that where venue is initially predicated on the residence of an improper party, a motion to change venue should be granted after the action is dismissed against the improper party. (Scuorzo v Safdar, 134 AD3d 511 [1st Dept 2015]; Chow v LIRR, 202 AD2d 154 [1st Dept 1994].) Here, Fromer Eye Centers is a resident of the county where its principal office is located, which is New York County and not Bronx County. (CPLR § 503(c).) Plaintiff is also a New York County resident, and Dr. Su was a New Jersey resident at the commencement [*3]of this action.[FN1] But as plaintiff did not premise venue on the residence of any party in this action, but instead on the place of occurrence, where any of the parties reside is unimportant in determining whether venue was properly placed.

Now, the ability to use the location of the event that underlies a claim to establish venue is a recent phenomena which the Legislature include in its 2017 amendment to CPLR § 503(a). (See L 2017, ch 366.) The previously mentioned well-settled rule of changing venue based on residence when an action is dismissed against an improper party, (Scuorzo, 134 AD3d 511; Chow, 202 AD2d 154), now includes instances where dismissal of a party establishes that the events underlying the claim did not occur in the venue indicated on the complaint. (Harvard v Bain, 188 AD3d 78 [4th Dept 2020]; Aldridge v Governing Body, 204 AD3d 1469 [4th Dept 2022].) Given the aforementioned, the Court is satisfied that Dr. Su has demonstrated that plaintiff's choice of venue was improper, and that New York County is the correct venue. Therefore, Dr. Su's motion is granted, plaintiff's cross-motion is denied, and upon payment of the appropriate fees, the Bronx County Clerk shall transfer this action to the New York County Clerk. Dr. Su is 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: November 23, 2022
Hon. Joseph E. Capella, J.S.C. Footnotes

Footnote 1: Dr. Su is now a resident of Westchester county.

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