HAKANJIN v. LINCARE INC (2019)

On appeal, plaintiffs do not argue that venue was proper where the action was filed (in Bronx County);  rather, they argue that the motion court erred in transferring the case to the venue requested by defendants (Westchester County) instead of the alternative venue requested by them (New York County).

Plaintiffs did not forfeit their right to select venue by selection of an improper venue because they reasonably relied in making that selection on information contained in the official police accident report, which turned out to be outdated (see Astillero v. Abramov, 92 A.D.3d 436, 937 N.Y.S.2d 593 [1st Dept. 2012];  Discolo v. River Gas & Wash Corp., 41 A.D.3d 126, 126, 837 N.Y.S.2d 95 [1st Dept. 2007];  Vasquez v. Sonin, 259 A.D.2d 340, 341, 687 N.Y.S.2d 30 [1st Dept. 1999]).

However, the motion court's determination to transfer this case to Westchester County was nonetheless proper because plaintiffs failed to demonstrate that the action could properly have been commenced in New York County (see Saxe by Saxe v. OB/GYN Assoc., 86 N.Y.2d 820, 822, 633 N.Y.S.2d 471, 657 N.E.2d 492 [1995]).  Under the version of CPLR 503(a) in effect when this action was commenced, the action could properly have been commenced in any county in which a party resided at the time of commencement.  Plaintiffs failed to offer any evidence in support of their claim that they resided in New York County when the action was commenced (see Key–Kanuteh v. Kenia, 288 A.D.2d 16, 732 N.Y.S.2d 9 [1st Dept. 2001]).  By contrast, it is undisputed that at least one of the corporate defendants resided in Westchester County at that time.

Plaintiffs' argument that it would be more convenient for them to litigate in New York County is likewise unavailing.  Although plaintiffs named several potential medical witnesses, they “failed to set forth the probable nature of their testimony, or whether they were prepared to testify and in what other manner, if any, Westchester County would be an inconvenient forum” (Lynch v. Cyprus Sash & Door Co., 272 A.D.2d 260, 261, 708 N.Y.S.2d 94 [1st Dept. 2000]).