McDonald v. Southhampton Hospital

133 A.D.2d 814, 520 N.Y.S.2d 193, 1987 N.Y. App. Div. LEXIS 51854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1987
• Status: Published

Opinion

In an action to recover damages based on medical malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), entered June 30, 1986, which granted the motion of the defendant Sherburn C. Brown and the cross motions of the defendants Southhampton Hospital, Hugh Halsey, II, and James P. Johnson for a change of venue of the action from New York County to Suffolk County. The appeal brings up for review so much of an order of the same court, entered September 26, 1986, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order entered June 30, 1986 is dismissed, as that order was superseded by the order entered September 26, 1986, made upon reargument; and it is further,

Ordered that the order entered September 26, 1986 is affirmed insofar as reviewed; and it is further,

Ordered that the defendants are awarded one bill of costs.

Absent a clear abuse of discretion, a determination to grant a change of venue pursuant to CPLR 510 (3) will not be disturbed on appeal (see, Resnick v Karmax Camp Corp., 112 AD2d 206). In a transitory action such as this, all other things being equal, the action should be tried in the county where the cause of action arose (see, Thomas v Small, 121 AD2d 622), and, under all of the circumstances, the court did not abuse its discretion in finding that the interests of justice would be promoted by changing the venue of the action to Suffolk County. Mangano, J. P., Brown, Weinstein and Kunzeman, JJ., concur.

Lawrence, J., concurs on constraint of Thomas v Small (121 AD2d 622).