Simon v. Usher

958 N.E.2d 540, 17 N.Y.3d 625, 934 N.Y.S.2d 362, 2011 NY Slip Op 7305

• Court: New York Court of Appeals
• Decided: October 20, 2011
• Docket: 172
• Status: Published

Opinions

OPINION OF THE COURT

Jones, J.

The question presented for our review is whether the five-day extension under CPLR 2103 (b) (2) applies to the 15-day time period prescribed by CPLR 511 (b) to move for change of venue when a defendant serves its demand for change of venue by mail. We hold that it does.

On July 17, 2009, plaintiffs Allen and Barbara Simon commenced this medical malpractice action against defendants in Supreme Court, Bronx County. Defendants Sol M. Usher, Sol M. Usher, M.D., P.C., Maxwell M. Chait, White Plains Hospital Center and Hartsdale Medical Group, P.C., (collectively, the Usher defendants) served their verified answers and demands to change venue to Westchester County on August 20, 2009. Twenty days later, on September 9th, the Usher defendants moved to change venue to Westchester County on the grounds that, except for Usher and Usher, M.D., P.C., all of the defendants and the plaintiffs reside in Westchester County; Usher’s and Usher, M.D., P.C.’s primary offices are in Westchester County; and plaintiff Allen Simon received the medical care at issue in Westchester County. The remaining defendants Sheldon Alter, Mid-Westchester Medical Associates, LLR Westchester Medical Group, PC. and Marianne Monahan served their answer on September 3rd and filed an affirmation in support of the motion to change venue on September 15th.

Supreme Court granted the motion to change venue to Westchester because “none of the parties to this action reside in Bronx County.” The Appellate Division unanimously reversed and denied the motion (73 AD3d 415 [2010]). The court, among other things, rejected the Usher defendants’ motion for a change of venue as untimely because it was made 20 days after service of the demand. It concluded that CPLR 2103 (b) (2)’s five-day extension for time periods measured from service by mail did not apply to CPLR 511. The Appellate Division granted the Usher defendants leave to appeal to this Court and certified the following question for review: “Was the order of this Court, which reversed the order of the Supreme Court, properly made?” (2010 NY Slip Op 92286[U] [2010]). We answer the certified question in the negative and now reverse.

When construing a statute, we must begin with the language of the statute and “give effect to its plain meaning” (Kramer v Phoenix Life Ins. Co., 15 NY3d 539, 550 [2010]). Pursuant to CPLR 511 (a), a defendant shall serve with the answer, or prior to service of the answer, a demand “for change of place of trial on the ground that the county designated for that purpose is not a proper county.” Subsection (b) permits defendant to “move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant.” CPLR 2103 (b) (2) provides “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period.” “The extension provided in CPLR 2103 (b) (2) constitutes legislative recognition of and compensation for delays inherent in mail delivery” (Sultana v Nassau Hosp., 188 AD2d 647, 648 [2d Dept 1992]).

Here, defendants who served their motion papers by mail 20 days after they served their demand to change venue are entitled to a five-day extension of the 15-day period prescribed in CPLR 511 (b). Plaintiffs, citing Sultana, contend that defendants cannot rely upon section 2103 (b) (2) for the five-day extension because the motion did not constitute response papers. Section 2103 (b) contains no language restricting its application to instances where a party is responding to papers served by an adversary. Moreover, defendants are permitted to move to change venue only in the event that plaintiffs do not consent in writing within five days after service of the demand. Although the motion papers are not directly responding to papers served by plaintiffs, defendants are effectively responding to plaintiffs’ lack of consent to the change of venue. Simply put, defendants’ motion papers are not initiatory and, because the demand was served by mail, defendants were entitled to the benefit of section 2103 (b) (2)’s five-day extension.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised but not determined on the appeal to that court, and the certified question answered in the negative.