MESSINA v. UPPER HUDSON PRIMARY CARE CONSORTIUM INC

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

Nicholas D. MESSINA et al., as Parents and Guardians of Albert D. Messina, an Infant, Appellants, v. UPPER HUDSON PRIMARY CARE CONSORTIUM, INC., Respondent.

Decided: February 23, 2006

Before:  CARDONA, P.J., MERCURE, PETERS, CARPINELLO and ROSE, JJ. E. Stewart Jones, P.L.L.C., Troy (E. Stewart Jones Jr. of counsel), for appellants. Thuillez, Ford, Gold, Johnson & Butler, L.L.P., Albany (David E. Rook of counsel), for respondent.

Appeal from that part of an order of the Supreme Court (Malone Jr., J.), entered July 14, 2004 in Albany County, which denied plaintiffs' motion for a change of venue.

In early 2000, plaintiffs commenced an action against certain medical professionals and a hospital in connection with injuries suffered by their son during his birth in 1999.   Venue for the action was placed in Washington County, the location of the hospital where the infant was born.   After it was discovered that defendant, an entity located in Albany County, was the hospital's owner, a second action was commenced in Albany County based on the same operative facts.   Upon the parties' subsequent cross motions, Supreme Court consolidated the two actions but denied that aspect of plaintiffs' motion seeking to have the now-consolidated action venued in Albany County, resulting in this appeal.

 Although venue for consolidated actions initiated in differing counties should ordinarily be placed in the county where the first action was commenced (see Gray v. Serbalik, 264 A.D.2d 934, 935, 695 N.Y.S.2d 430 [1999];  Matter of Rent Stabilization Assn. of N.Y. City v. New York State Div. of Hous. & Community Renewal, 252 A.D.2d 111, 115, 681 N.Y.S.2d 679 [1998];   Troy Sav. Bank v. American Equity Funding, 120 A.D.2d 828, 829, 502 N.Y.S.2d 107 [1986] ), special circumstances may warrant placement of the consolidated action in the second venue (see e.g. Government Empls. Ins. Co. v. Uniroyal Goodrich Tire Co., 242 A.D.2d 765, 766, 661 N.Y.S.2d 847 [1997];  Magee v. Hutcher, 174 A.D.2d 941, 941, 571 N.Y.S.2d 637 [1991] ).   Significantly, although the infant in this action was born in Washington County, he was transferred to a hospital in Albany County immediately thereafter and continues to reside in that county due to his significant ongoing medical needs.   It appears uncontroverted that the infant would have great difficulty attending proceedings in Washington County (see Hirsch v. Canoha Transp., 124 A.D.2d 440, 507 N.Y.S.2d 772 [1986];  Kiamesha Concord v. Greenman, 29 A.D.2d 904, 905, 287 N.Y.S.2d 972 [1968];  see also Messinger v. Festa, 94 A.D.2d 792, 792, 463 N.Y.S.2d 235 [1983] ).   Additionally, plaintiffs have presented an extensive list of nonparty medical professionals who attend to the infant's needs in Albany County and who would be inconvenienced if called upon to testify in a Washington County action (see Troy Sav. Bank v. American Equity Funding, supra at 829-830, 502 N.Y.S.2d 107;  see also Messinger v. Festa, supra at 792-793, 463 N.Y.S.2d 235).   Accordingly, under the unique circumstances presented, we conclude that venue for the consolidated action should be in Albany County.

ORDERED that the order is modified, on the facts, without costs, by reversing so much thereof as denied plaintiffs' motion for a change of venue;  motion granted;  and, as so modified, affirmed.

CARDONA, P.J.

MERCURE, PETERS, CARPINELLO and ROSE, JJ., concur.

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