Moracho v. Open Door Family Medical Center, Inc.

79 A.D.3d 581, 914 N.Y.S.2d 102

Opinions

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered September 25, 2009, which granted the motions of defendants Open Door Family Medical Center, Inc., Scully Construction Corp. and Scully Construction LLC to change venue to Westchester County, reversed, on the law, and the motions denied.

While there is no statutory time limit for a motion to change venue upon dismissal of a party whose residence provided the basis for venue, this Court has nonetheless required that such motions be made promptly (Clase v Sidoti, 20 AD3d 330 [2005]; Caplin v Ranhofer, 167 AD2d 155, 157-158 [1990]), that is, within a reasonable time after the movant obtains knowledge of the facts supporting the request (Herrera v R. Conley Inc., 52 AD3d 218 [2008]; Diaz v Clock Tower Assoc., 271 AD2d 290 [2000]). It also bears noting that a party need not wait for notice of entry of the order dismissing the improper party before it moves for a change of venue (see Emerick v Metropolitan Transp. Auth., 272 AD2d 150 [2000] [venue motion made simultaneous with dismissal motion]).

Here, defendants may have been aware as early as February 28, 2008, 15 months before making their motion, that Primary Care Development Corporation, the sole defendant on whose residence venue in New York County was based, sought dismissal of the action against it.

* Thereafter, Primary Care’s September 2008 dismissal motion, made more than eight months prior to the other defendants’ venue applications, was unopposed. By order entered March 4, 2009, the court dismissed Primary Care from the case. In its order, the court explicitly stated that “none of the remaining parties has any connection to New York County and that [the] case is therefor amenable to a motion to change venue.”

Notwithstanding this pronouncement, the remaining defendants waited an additional three months, during which time they appeared in New York County and set a trial date, without giving any indication of a venue problem. Two months after the trial date was set, the motion was made to change venue to Westchester. Given these circumstances, the grant of the motion was an improvident exercise of discretion and an implicit endorsement of careless motion practice, in disregard of the important principles of fair notice and judicial economy (see e.g. Herrera v R. Conley Inc., 52 AD3d 218 [2008]; Schwarz v Erpf Estate, 232 AD2d 316 [1996]; see also Litt v Balmer, 146 AD2d 559 [1989] [that trial date had been set was factor supporting finding that granting untimely venue change was abuse of discretion]). Concur — Gonzalez, P.J., Richter, Román, JJ.

This motion was apparently withdrawn.