Gonzalez v. Flushing Hospital Medical Center

245 A.D.2d 543, 666 N.Y.S.2d 502, 1997 N.Y. App. Div. LEXIS 13349

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1997
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, the defendant Flushing Hospital Medical Center appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Patterson, J.), dated August 22, 1997, as denied its motion to change venue from Kings County to Queens County, and denied that branch of the cross motion of the defendants Alan Barry Nerenberg, M.D., and John Joseph Pellettieri, M.D., in which it joined, which was to require the plaintiff to post security for costs pursuant to CPLR 8501 (a).

Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the cross motion of the defendants Alan Barry Nerenberg, M.D., and John Joseph Pellettieri, M.D., in which the appellant Flushing Hospital Medical Center joined, which was to require the plaintiff to post security for costs pursuant to CPLR 8501 (a) and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of security for costs which should be posted.

The Supreme Court did not improvidently exercise its discretion in denying the appellant’s motion to change venue pursuant to CPLR 510 (3) (see, O’Brien v Vassar Bros. Hosp., 207 AD2d 169). However, as she is not a resident of this State, the plaintiff must furnish security for costs in compliance with CPLR 8501 (a) (see, Scharaga v Schwartzberg, 149 AD2d 578, 580). Bracken, J. P., Pizzuto, Altman, Krausman and Lerner, JJ., concur.