Wecht v. Glen Distributors Co.

112 A.D.2d 891, 493 N.Y.S.2d 313, 1985 N.Y. App. Div. LEXIS 52118

Opinions

Order, Supreme Court, New York County (S. Schwartz, J.) entered June 5, 1984, denying defendants’ motion for a change of venue to Suffolk County, affirmed, without costs.

On or about January 11, 1983, plaintiff Robert Wecht commenced this personal injury action, joined by his wife who sues for loss of consortium, against defendants General Motors, its Chevrolet Division, and Dial Chevrolet. The complaint alleges that the truck Robert was driving on Sound Avenue in Suffolk County went out of control, struck a guide pole and flipped over, crushing his left foot. Plaintiffs claim that the accident was caused by locking of the brakes, due to the defective design and manufacture of the truck braking system, and truck cab. The named defendants, Chevrolet Motors Division of General Motors, General Motors, and Dial Chevrolet were the manufacturers and retailer of the truck, respectively. In March 1983, issue was joined by service of defendants’ answers which, inter alia, affirmatively alleged contributory negligence.

Venue was placed in New York County on the basis of the place of business maintained there by General Motors. General Motors moved for change of venue, pursuant to CPLR 510 (3), predicated on the convenience of material witnesses and the ends of justice, in which motion the other defendants have joined. While the motion was pending for decision at Special Term, General Motors and Dial Chevrolet asserted their own third-party claims for contribution and indemnity against Imperial News Co., Inc., Mr. Wecht’s employer and the owner of the truck, and Boyertown Autobody Works, the alleged manufacturer of the body of the truck. Defendants’ motion was denied by Special Term, and this appeal ensued. We conclude that there has been no clear abuse of discretion and affirm.

Determination of a motion for change of venue pursuant to CPLR 510 (3) "lies 'largely in the discretion of the special term, and its determination of such motions will not be reversed on appeal unless it clearly appears that there was an abuse of that discretion, or that the court erred in coming to the conclusion [that] it did’ ”. (Greentree Pub. Co. v Oneida Dispatch Corp., 59 AD2d 711 [2d Dept 1977]; accord, Beardsley v Wyoming County Community Hosp., 42 AD2d 821 [4th Dept 1973]; Bult v Kornspan, 37 AD2d 672 [3d Dept 1971]; Palmer v Chrysler Leasing Corp., 24 AD2d 820 [4th Dept 1965].) Defendants’ factual showing concerning the convenience of witnesses has superficial logic, but does not withstand close scrutiny. The elimination of parties and their employees, whose convenience is irrelevant, from defendants’ list leaves six witnesses who would allegedly be inconvenienced by the New York forum. (Stavredes v United Skates, 87 AD2d 502 [1st Dept 1982]; Slavin v Whispell, 5 AD2d 296, 298 [1st Dept 1958]; Taller & Cooper v Rand, 286 App Div 1096; but see, 2 Weinstein-Korn-Miller, NY Civ Prac ¶ 510.19.) Since Imperial News Co. was joined as a party subsequent to the submission of this motion at Special Term, one of the witnesses, Vincent Doyle, may properly be treated as the employee of a party.

Among these remaining six witnesses, three are doctors who treated Wecht and who practice in Nassau County. They are clearly no more inconvenienced by trial in New York County than in Suffolk. While it is 20 miles from the Nassau/Suffolk border to New York County, it is 50 miles therefrom to Riverhead. Only one of the three remaining Suffolk County resident witnesses, Dr. R. J. Hastings, of Central Suffolk Hospital, is a material witness. (It should also be noted that these four physicians will probably be called as witnesses by the plaintiffs.)

Defense witness Maria Parson’s testimony is inadmissible to the extent that defendants proffer it to establish the hazardous nature of Sound Avenue. She is not qualified as an engineering expert to testify as to Sound Avenue’s design and its contribution, if any, to the accident. In view of defendants’ concession at oral argument that the condition of the road will be stipulated to at trial, neither Parsons nor Officer Zaleski are material witnesses. The unspecified testimony of unidentified ambulance, hospital, and fire department employees whose addresses are not stated, cannot be considered material. (Condon v Schwenk, 10 AD2d 822 [1st Dept 1960].)

Venue in this action was properly based on defendant General Motors’ place of business, pursuant to CPLR 503. Special Term properly weighed the convenience of plaintiffs’ then unidentified principal witnesses, whom plaintiffs contended would be experts on truck design and manufacture, and most likely not Long Island residents, in determining not to disturb plaintiffs’ choice of venue. While the convenience of an expert is not entitled to great weight, the convenience of principal witnesses who will testify as to liability is entitled to greater weight than that of witnesses concerning damages. (Ray v Beauter, 90 AD2d 988 [4th Dept 1982]; Palmer v Chrysler Leasing Corp., supra; Bernstein v McKane, 3 AD2d 764, 765 [2d Dept 1957]; see, Slavin v Whispell, supra.) Since plaintiffs’ unidentified witnesses are not only experts, but principal liability witnesses as well, their convenience was entitled to more consideration than that of the witness Dr. Hastings, whose testimony will only relate to damages. New York County is clearly more accessible to non-Long Island residents than is Suffolk County.

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Moreover, absent other compelling considerations, the convenience of Dr. Hastings does not warrant a discretionary change in venue. (Bult v Kornspan, supra.) Although rural counties are slightly favored over urban ones where a speedy trial can be had, defendants significantly fail to show prospects for a speedier trial in Suffolk County. (Kucich v Leibowitz, 68 AD2d 1002 [3d Dept 1979]; Greentree Pub. Co. v Oneida Dispatch Corp., supra, pp 711-712; Fernandez v Jagoda, 21 Misc 2d 545 [Sup Ct, NY County 1959].) Defendants claim the presence of police and hospital records in Suffolk County militates in favor of transfer. However, most of the medical records are in Nassau County, where the great portion of Mr. Wecht’s medical treatment was received. Since all pertinent records may be readily mailed to court, no real inconvenience is demonstrated. (Stavredes v United Skates, 87 AD2d 502, supra.)

The dissenters rely upon those cases stating that all things being equal, a transitory action should be tried where the cause of action arose, as authority for finding an abuse of discretion of Special Term, i.e., Chaewsky v Siena Coll. (100 AD2d 753 [1st Dept 1984]), De Jesus v Wallkill Auto Sales Corp. (76 AD2d 812 [1st Dept 1980]), Chung v Kivell (57 AD2d 790 [1st Dept 1977]), and Slavin v Whispell (5 AD2d 296, supra). Close reading revéals that those cases are inapposite since, rather than all things being equal, the confluence of factors in each instance, favored trial in the place where the cause of action arose. (2 Weinstein-Korn-Miller, NY Civ Prac ¶ 510.17; see also, O’Leary v Hull, 101 AD2d 741 [1st Dept 1984]; Meier v Ford Motor Co., 93 AD2d 729 [1st Dept 1983].) On this record, we conclude that Special Term’s decision to deny the motion was a valid exercise of its discretion. Concur — Sandler, Rosenberger and Ellerin, JJ.; Murphy, P. J., and Carro, J., dissent in a separate memorandum by Carro, J.

On this appeal plaintiffs identified their expert, William Burrow, an Albany County resident. This fact, although not contained in the record, has a bearing upon the convenience of material witnesses in this litigation. In the exercise of discretion, it should be considered in affirming Special Term’s order. (Matter of Dwyer, 57 AD2d 772 [1st Dept 1977].)