Mikul v. Silverman

Mar 21, 2006
Versions:27 A.D.3d 625
810 N.Y.S.2d 677

NICOLASA MASSARI, Respondent, v BARBARA HAUSMAN et al., Appellants. [810 NYS2d 902]

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Roberto, J.), entered March 31, 2005, which granted the plaintiff’s motion, in effect, for leave to renew their prior motion to dismiss the complaint for lack of personal jurisdiction, and upon renewal, vacated the dismissal of the action and extended the plaintiff’s time to serve the complaint pursuant to CPLR 306-b.

Ordered that the order is affirmed, without costs or disbursements.

Under the circumstances of this case, the Supreme Court providently exercised its discretion. Crane, J.P., Krausman, Rivera and Dillon, JJ., concur.

JOHN C. MIKUL, Appellant, v PHILIP JAY SILVERMAN et al., Respondents, et al., Defendants. [810 NYS2d 677]

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Richmond County (Gigante, J.), dated November 17, 2004, which granted the motion of the defendants Philip Jay Silverman and Gilbert Lederman pursuant to CPLR 510 (2) to change of venue from Richmond County to a county “outside of the metropolitan and neighboring areas” to the extent of transferring venue from Richmond County to Albany County.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the Clerk of the Supreme Court, Albany County, is directed to deliver to the Clerk of the Supreme Court, Richmond County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511 [d]).

The respondents failed to demonstrate that they could not obtain an impartial trial in Richmond County (see CPLR 510 [2]). Accordingly, the Supreme Court should have denied their motion pursuant to CPLR 510 (2) to change venue (see Field v Schultz, 288 AD2d 177 [2001]; DeBolt v Barbosa, 280 AD2d 821, 825-826 [2001]; Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666 [1994]; Clausi v Hudson Cement Co., 26 AD2d 872, 873 [1966]). Schmidt, J.P., Crane, Krausman, Skelos and Lunn, JJ., concur.