Siegel v. Greenberg

85 A.D.2d 516, 444 N.Y.S.2d 622, 1981 N.Y. App. Div. LEXIS 16287

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1981
• Status: Published

Opinions

Order, Supreme Court, New York County (Schwartz, J.), entered on October 31,1980, modified, on the law, the facts and in the exercise of discretion, so as to consolidate Action No. 1, pending in New York County, with Action No. 2, pending in Queens County, and remove the venue to Supreme Court, Nassau County, and said order is otherwise affirmed, without costs and without disbursements. The appeal and cross appeal from the order of said court, entered on June 25,1980, is dismissed as having been subsumed in the appeal and cross appeal from the order entered on October 31, 1980. These are two medical malpractice actions commenced against “diet doctors” alleging that their actions caused the plaintiff wife to become addicted to amphetamines and amphetamine-type drugs. As a result of these treatments, the plaintiff wife is alleged to have suffered drug-induced liver damage. The action against Doctors Turetsky and Datlof (Action No. 2) was commenced in September, 1978. Queens County was selected as the place for trial of this action based on the residence of the defendant doctors. Some eight months thereafter, the plaintiffs instituted an action against Doctor Greenberg (Action No. 1). Venue was laid in New York County, presumably grounded on defendant’s residence on West 57th Street. Thereafter, the plaintiffs moved to consolidate these actions and sought to have both tried in New York County. Special Term denied the motion, finding that no common question of law or fact exists and, upon renewal, the court adhered to its prior determination. A majority of this court concludes otherwise. Both actions seek damages for medical malpractice in which it is alleged the plaintiff wife became addicted to a particular drug. One common denominator, which winds its way through these actions, is whether the defendant doctors were negligent in prescribing or continuing the plaintiff wife on these substances. We do know that the wife suffered some damage; we do not know whether these injuries resulted from the conduct of the defendants. Indeed, these and similar questions can only be answered by extensive medical testimony. One of the aims of a consolidated trial is to eliminate, as much as possible, unnecessary duplication. Such a result will be obtained here by having the required medical experts testify at one trial, rather than having these experts travel from county to county. In addition, a very real possibility exists that, if separate trials are held, the respective juries might return inconsistent verdicts. To eliminate this potential, consolidation is appropriate. In ordering consolidation, the designated venue for one cause of action must be ignored. However, here defendant Greenberg did not make a formal demand for a change of venue (CPLR 511). Rather, this defendant’s reaction to the motion for consolidation was to cross-move for a change of venue to either Nassau or Suffolk County. Since he failed to comply with the statutory requirements, this cross motion was, therefore, addressed to the discretion of the court (see, e.g., Reichenbach v Corn Exch. Bank Trust Co., 249 App Div 539). Under the facts of this case, Special Term abused its discretion in not granting the motion to change venue. The sole basis for the New York County venue for Action No. 1 was the fact that Dr. Greenberg maintained an office for the practice of medicine in this county. However, the more appropriate county in which these actions should be tried is Nassau County. The plaintiffs both reside in Suffolk County. All examinations and treatments of the plaintiff wife occurred in Nassau County. Concur — Sandler, Ross and Markewich, JJ.