Spicer v. Adelson

Dec 5, 2005
Versions:24 A.D.3d 430
804 N.Y.S.2d 688

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Kings County (Levine, J.), dated February 18, 2005, which granted the defendants’ motion pursuant to CPLR 510 (3) to change the venue of this action from Kings County to Onondaga County or, in the alternative, to Westchester County to the extent of transferring the venue of this action to Westchester County.

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

The defendants failed to make the requisite showing for a change of venue based on the convenience of material witnesses (see CPLR 510 [3]; O‘Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173 [1995]). Accordingly, the Supreme Court should have denied the defendants’ motion to change the venue of this action. H. Miller, J.P., Crane, Krausman, Rivera and Lifson, JJ., concur.