TIMAN v. Cain Ranjan, M.D., et al., Defendants. (2008)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered on or about June 12, 2006, which granted the respective motion and cross motion by defendants Mile Square Pharmacy and Ricky Sayegh to change venue from Bronx to Westchester County and denied plaintiff's cross motion to retain venue in the Bronx, and order, same court and Justice, entered June 20, 2006, which granted the motion by defendants Yonkers Central Park CVS and Tschinkel to change venue from Bronx to Westchester and reiterated denial of plaintiff's cross motion to retain venue in the Bronx, unanimously reversed, on the law, without costs, the motions and cross motion for change of venue denied, and plaintiff's cross motion granted.

Plaintiff's decedent committed suicide in Yonkers, where he had lived with his family.   He had been suffering from depression, anxiety, substance abuse and low back pain, and had received medical treatment from the physician defendants, whose medical offices were located in Yonkers.   Other nonparty medical providers who had rendered services to the decedent, as noted by defendants, either lived or worked in lower Westchester.   The Yonkers Police Department investigated the incident and the Westchester County Medical Examiner's Office conducted the autopsy.   Plaintiff commenced the instant action alleging medical malpractice and wrongful death, claiming the medical and pharmacy defendants were negligent in rendering medical care and/or in the distribution of pharmaceuticals.

 Venue was properly laid in the Bronx on the basis of a defendant's residence there (CPLR 503[a] ).   In seeking a change of venue to Westchester for the convenience of material witnesses (CPLR 510[3] ), defendants failed to meet their burden of showing, inter alia, that such witnesses had been contacted and would be willing to testify, and how they would inconvenienced by having to attend a trial in the Bronx (see Heinemann v. Grunfeld, 224 A.D.2d 204, 637 N.Y.S.2d 141 [1996] ).   Mere general statements as to witness inconvenience are not enough (Hartigan v. Kurian, 224 A.D.2d 299, 638 N.Y.S.2d 33 [1996] ).   We have rejected a change of venue in similar cases where witnesses predominantly resided or maintained offices in Yonkers and failed to explain how they would be inconvenienced by a trial in the Bronx as opposed to Westchester, particularly given that the distance from Yonkers to the courts in the two counties is roughly the same (see e.g. Rosario v. St. John's Riverside Hosp., 11 A.D.3d 351, 784 N.Y.S.2d 485 [2004];  Preldakaj v. Gazivoda, 224 A.D.2d 280, 638 N.Y.S.2d 26 [1996];  Kurnitz v. New Rochelle Hosp. Med. Ctr., 166 A.D.2d 390, 561 N.Y.S.2d 193 [1990] ).