GUINNIP v. MARESCA (2018)

Recitation as required by CPLR § 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion and Affidavit/Affirmation Annexed 1

Affirmation in Support 2

Affirmation in Opposition 3

Reply Affirmation 4

Memorandum of Law 5

In this action for medical malpractice, defendants David Okolica, M.D. (Dr. Okolica), and Auburn Community Hospital (Auburn) moved for an order, pursuant to CPLR §§ 503 and 510(3), granting a change of venue from Kings County to Cayuga County. Defendant Alan Sherburne, M.D. (Dr. Sherburne) submitted an affirmation in support of the motion.

Facts

On December 21, 2015, Peter Guinnip (Peter) was admitted to Auburn where he underwent three surgeries within three weeks. See Amended Verified Complaint at ¶¶ 39 - 40, 42, 44. Dr. Okolica performed and/or assisted with Peter's first surgery on December 21, 2015. See Amended Verified Complaint at ¶¶ 40 - 41. Then, Dr. Sherburne performed and/or assisted with Peter's second and third surgeries on December 27, 2015 and January 5, 2016, respectively. See Amended Verified Complaint at ¶¶ 42 - 44, 46. On January 16, 2016, Peter died. See Amended Verified Complaint at ¶ 54.

On August 1, 2017, Morgan Guinnip (Morgan), Peter's daughter and the administrator of Peter's estate, commenced this suit in her county of residence, Kings County. See Verified Complaint. Morgan alleged that Peter died due to the negligent medical care he received from defendants. See Amended Verified Complaint at ¶¶ 53 - 54. Issue was joined on November 8, 2017. See Dr. Okolica and Auburn's Answers. On or about February 22, 2018, Dr. Okolica and Auburn moved to change venue to Cayuga County. See Okolica and Auburn's Motion to Change Venue. On or about April 13, 2018, Dr. Sherburne submitted an affirmation in support of the motion to change venue. See Sherburne's Affirmation in Support.

Movants do not contend that Kings County is an improper venue. See Casey affidavit at ¶¶ 9, 16. Instead, they assert that venue should be transferred to Cayuga County because: (1) Morgan is a resident of both Cayuga and Kings Counties; (2) venue in Kings County poses an extreme hardship to material witnesses; and (3) the Court in Cayuga County is less congested. See Casey affidavit at ¶¶ 11, 20, 30. In support of their second rationale, defendants collectively submitted nineteen affidavits from their purported material witnesses. See Casey affidavit at ¶ 21; Kibler affidavit at ¶ 7.

Law

Pursuant to CPLR § 503(b), “an administrator shall be deemed a resident of the county of [her] appointment as well as the county in which [she] actually resides.” For venue purposes, a residence is where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. See Ellis v. Wirshba, 18 AD3d 805, 796 N.Y.S.2d 388 (2d Dept. 2005); Bikel v. Bakertown Realty Group, Inc., 157 AD3d 924, 69 N.Y.S.3d 876 (2d Dept. 2018).

Where venue is properly designated based upon a party's residence, a discretionary change of venue may be granted for the convenience of material witnesses only after a detailed evidentiary showing that the convenience of nonparty witnesses would, in fact, be served by granting such relief. See CPLR §§ 503, 509, and 510(3); O'Brien v. Vassar Brothers Hospital, 207 AD2d 169, 622 N.Y.S.2d 284 (2d Dept. 1995); Zervos v. Vargas, 105 AD3d 1040, 964 N.Y.S.2d 562 (2d Dept. 2013). Even where a party administrator's residence is the only nexus between the case and the county, the party moving for a discretionary change of venue has the burden of demonstrating that the convenience of material witnesses and the ends of justice would be promoted by the change. Peoples v. Vohra, 113 AD3d 664, 978 N.Y.S.2d 353 (2d Dept. 2014); Ambroise v. United Parcel Serv. Of Am. Inc., 143 AD3d 927, 39 N.Y.S.3d 255 (2d Dept. 2016).

In arguing for the convenience of material witnesses, movants must disclose: (1) the names, addresses, and occupations of the material witnesses; (2) the facts to which those witnesses will testify at trial; (3) a showing that those witnesses are willing to testify at trial; and (4) a showing that those material witnesses will be inconvenienced if a change of venue is not granted. See Fernandes v. Lawrence, 290 AD2d 412, 736 N.Y.S.2d 603 (2d Dept. 2002); McManmon v. York Hill Housing, Inc., 73 AD3d 1137, 903 N.Y.S.2d 72 (2d Dept. 2010). The convenience of the parties, their employees, and members of their families are excluded from consideration in determining a motion pursuant to CPLR § 510(3). See Lundgren v. Lovejoy, Wasson, Lundgren and Ashton, 82 AD2d 912, 440 N.Y.S.2d 692 (2d Dept. 1981); Runcie v. Cross County Shopping Mall, 268 AD2d 577, 702 N.Y.S.2d 612 (2d Dept. 2000). The convenience of witnesses residing outside the respective counties (Kings and Cayuga) are also not considered. See Lundgren, 82 AD2d 912. The mere fact that the witnesses would be required to travel a significant distance does not establish, without more, that requiring their testimony would impose an undue burden on them. Ambroise, 143 AD3d 927.

Finally, affording the litigants a speedier trial in a county that has relatively less calendar congestion is an ends of justice consideration. See Thomas v. Small, 121 AD2d 622, 504 N.Y.S.2d 312 (2d Dept. 1986). However, an assertion that a discretionary change of venue will promote the ends of justice still requires a showing that the convenience of the material witnesses will be best accomplished by a change in venue. See Peoples, 113 AD3d 664.

Analysis

Morgan was domiciled in Kings County at the commencement of this action, thus Kings County is a proper venue. The Court must therefore determine whether venue should be changed based upon convenience. Upon review, most of the nineteen affidavits proffered by defendants were not considered. Nine of the affidavits were barred from consideration because the purported witnesses were, then and now, employed by Auburn. Three affidavits were not considered because the purported witnesses resided outside of the respective counties (Kings and Cayuga). Of the remaining seven affidavits, one was not considered because it did not disclose any purported testimony. Two affidavits were from parties to this action, thus they were of no probative value.

The remaining four affidavits did not fare any better. One cited travel as the only inconvenience, which is insufficient as a matter of law. The next two affidavits presented non-material testimony. Specifically, those affidavits were submitted by witnesses who were not present during the surgeries that are at the heart of this matter. The final affidavit was from the circulating nurse who was present during Peter's first surgery. Although that nurse was present at a pivotal moment, her affidavit failed to specify the nature and materiality of her anticipated testimony. As such, none of the nineteen affidavits were sufficient to show that the convenience of material witnesses would be served by a change of venue.

Lastly, movants contend that this case should be transferred to the less congested county to promote the ends of justice. However, this assertion is unavailing since the grounds for discretionary change of venue were not satisfied. Indeed, in Peoples v. Vohra, supra, like here, movants argued that the plaintiff administrator's residence was the only nexus between the action and the county and, as such, to promote the ends of justice, the action should be transferred to the venue where the alleged medical malpractice occurred. The Peoples Court found that argument to be unpersuasive since the movants failed to first establish grounds for a discretionary change under CPLR § 510(3). Movants herein meet the same fate, due to their failure to establish any rationale for a discretionary change of venue.

Accordingly, defendants' motion to change venue is denied.

This constitutes the Decision and Order of this Court.

Genine D. Edwards, J.