Hoskins v. Kung

237 A.D.2d 988, 654 N.Y.S.2d 551, 1997 N.Y. App. Div. LEXIS 3650

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1997
• Status: Published

Opinion

Order unanimously reversed on the law without costs, motion granted in part and cross motion granted in accordance with the following Memorandum: Supreme Court erred in denying the motion of defendant Arnot-Ogden Medical Center (Medical Center) and the cross motion of defendants Kung and Hutsal for a change of venue pursuant to CPLR 511 (b). Plaintiffs commenced this action in Monroe County, where none of the parties resides. That was improper (see, CPLR 503 [a]; Peretzman v Elias, 221 AD2d 192), and plaintiffs thereby forfeited their right to designate venue (see, Kirschner v Cusa, 211 AD2d 665, 666; Kaplan v Waldbaum’s Inc., 208 AD2d 683). The Medical Center demanded a change of venue to Chemung County, where it is located and where the other defendants reside, while the other defendants requested that the trial take place in Steuben County, where plaintiffs reside. Because plaintiffs did not establish that Chemung or Steuben County was improper under CPLR 503 (a) and did not cross-move to retain venue in Monroe County, the court should have granted the motion and cross motion for a change of venue (see, Nixon v Federated Dept. Stores, 170 AD2d 659, 660; Bruder v Pepsi Cola, 166 AD2d 243, 244). We do not consider plaintiffs’ contention, raised for the first time on appeal, that the motion and cross motion were untimely.

We therefore grant the motion in part, grant the cross motion in its entirety and transfer the action to Supreme Court, Steuben County. We note that the Medical Center has indicated in its brief that it does not object to venue in Steuben County. (Appeals from Order of Supreme Court, Monroe County, Bergin, J.—Venue.) Present—Pine, J. P., Lawton, Callahan, Doerr and Fallon, JJ.