Kraft v. Kamalian

290 A.D.2d 264, 735 N.Y.S.2d 540, 2002 N.Y. App. Div. LEXIS 130

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2002
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered October 16, 2000, which granted defendant’s motion for a change of venue from Bronx County to Orange County, unanimously reversed, on the law, the facts and in the exercise of discretion, and the motion denied, without costs.

In this medical malpractice action, commenced in November 1996, the motion court erred in granting defendant’s motion for a change of venue from Bronx County, where plaintiff resided from the summer of 1995 until late 1998, to Orange County, where she received medical treatment from defendant from 1991 through 1995, and where she resided during that time.

The motion, brought more than three years after the commencement of the action, and more than a year after the filing of the note of issue, was untimely (CPLR 511 [a]; see also, Campos v New York City Health & Hosps. Corp., 163 AD2d 49). Further, “a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs’ residence at the time of the commencement of the action” (Iassinski v Vassiliev, 220 AD2d 372, 374, citing Cardona v Aggressive Heating, 180 AD2d 572, 573).

As to the two physician witnesses claimed to be inconvenienced by the Bronx venue, one was an employee of defendant (see, Katz v Goodyear Tire & Rubber Co., 116 AD2d 506), and as to the other, defendant has not satisfied the four-part evidentiary requirement for convenience of nonparty witnesses (see, O’Brien v Vassar Bros. Hosp., 207 AD2d 169). Concur— Williams, J.P., Tom, Mazzarelli, Rosenberger and Ellerin, JJ.