LAWRENCE SEGUIN AND KATHLEEN SEGUIN PLAINTIFFS RESPONDENTS v. MATTHEW LANDFRIED GENESEE ORTHOPAEDICS AND SPORTS MEDICINE LLP VALERIE THOMAS PETER JANES DEBRA OMIATEK JOHN BRACH MICHAEL MERRILL JOSEPH OTTEN UNITED MEMORIAL MEDICAL CENTER DEFENDANTS APPELLANTS ET AL DEFENDANTS (2012)

Supreme Court, Appellate Division, Fourth Department, New York.

LAWRENCE D. SEGUIN AND KATHLEEN M. SEGUIN, PLAINTIFFS–RESPONDENTS, v. MATTHEW J. LANDFRIED, M.D., GENESEE ORTHOPAEDICS AND SPORTS MEDICINE, LLP, VALERIE S. THOMAS, P.A., PETER T. JANES, M.D., DEBRA M. OMIATEK, M.D., JOHN A. BRACH, M.D., MICHAEL D. MERRILL, M.D., JOSEPH V. OTTEN, M.D., UNITED MEMORIAL MEDICAL CENTER, DEFENDANTS–APPELLANTS, ET AL., DEFENDANTS.

CA 11–02552

Decided: June 08, 2012

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (J. MARK GRUBER OF COUNSEL), FOR DEFENDANTS–APPELLANTS MATTHEW J. LANDFRIED, M.D., GENESEE ORTHOPAEDICS AND SPORTS MEDICINE, LLP, VALERIE S. THOMAS, P.A., AND JOSEPH V. OTTEN, M.D. GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ANGELO S. GAMBINO OF COUNSEL), FOR DEFENDANTS–APPELLANTS PETER T. JANES, M.D., DEBRA M. OMIATEK, M.D., JOHN A. BRACH, M.D., AND MICHAEL D. MERRILL, M.D. FELDMAN KIEFFER, LLP, BUFFALO (RANDY C. MALLABER OF COUNSEL), FOR DEFENDANT–APPELLANT UNITED MEMORIAL MEDICAL CENTER. BRIAN P. FITZGERALD, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed in the exercise of discretion without costs and the motions are granted.

Memorandum: We agree with defendants-appellants (defendants) that Supreme Court improvidently exercised its discretion in denying their respective motions pursuant to CPLR 510(3) seeking to change the venue of this medical malpractice action from Erie County to Genesee County (see Costello v. Forbes, 294 A.D.2d 856). In support of their motions, defendants provided, inter alia, the physicians' affirmations and nurses' affidavits of 14 nonparty witnesses who treated Lawrence D. Seguin (plaintiff) at defendant United Memorial Medical Center in Genesee County and at Strong Memorial Hospital in Monroe County. The nonparty witnesses stated the nature of their treatment of plaintiff and their respective reasons for the inconvenience of traveling from their respective homes or places of work to Erie County (see McLaughlin v. City of Buffalo, 259 A.D.2d 1014, 1015; cf. Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899). Plaintiff Kathleen M. Seguin, who has asserted a derivative cause of action, moved to Erie County several months following plaintiff's treatment and it is upon the basis of her residence that the action was commenced in Erie County. Plaintiffs have “failed to demonstrate any other consideration that would favor [Erie] County as the proper venue of this action” (McLaughlin, 259 A.D.2d at 1015; see Costello, 294 A.D.2d at 856–857). We therefore conclude that defendants established that “the convenience of material witnesses and the ends of justice will be promoted by the change” of venue (CPLR 510[3]; cf. 1093 Group, LLC v. Canale, 72 AD3d 1561, 1562).

Frances E. Cafarell

Clerk of the Court

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