Simon v. Usher

93 A.D.3d 401, 938 N.Y.S.2d 887

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2012
• Status: Published

Opinion

Upon remittitur from the Court of Appeals (17 NY3d 625 [2011]), order, Supreme Court, Bronx County (Mary BriganttiHughes, J.), entered October 27, 2009, which, in a medical malpractice action, granted the motion of the Usher defendants and defendants Chait, Hartsdale Medical Group, EC., and White Plains Hospital Center to change venue from Bronx County to Westchester County, unanimously affirmed, without costs.

The motion to change venue was properly granted upon the grounds that, except for defendants Usher and Usher, M.D., EC., all of the defendants and plaintiffs reside in Westchester County, and that while Usher, M.D., EC., maintains a satellite office in Bronx County that it rents one day per month, Usher’s primary office is located in Westchester County, the office where plaintiff was treated. Thus, movants met their initial burden of establishing that the Bronx County venue chosen by plaintiffs is improper (CPLR 503 [a]; 510 [1]; Hernandez v Seminatore, 48 AD3d 260 [2008]), and since plaintiffs forfeited their right to select the venue by choosing an improper venue in the first instance, venue is properly placed in Westchester County, where most of the parties reside (Weiss v Wal-Mart Stores E., L.P., 83 AD3d 461 [2011]). Concur — Gonzalez, P.J., Tom, Renwick, DeGrasse and Abdus-Salaam, JJ.