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Costello v. Forbes3/15/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motions are granted and the cross motion is denied.
Memorandum
Supreme Court improvidently exercised its discretion in denying defendants' motions pursuant to CPLR 510 (3) seeking to change the venue of this medical malpractice/wrongful death action from Erie County to Monroe County and in granting plaintiff's cross (*2)motion seeking to dismiss the affirmative defenses of improper venue. Although plaintiff, as administratrix of decedent's estate, resides in Erie County, defendants established that it is inconvenient for three nonparty material witnesses who reside in Monroe County to travel to Erie County to testify. Those witnesses are nurses formerly employed by defendant Genesee Hospital, which has since closed. In addition to providing their names and addresses, defendants provided affidavits of those witnesses stating that each is willing to testify, setting forth the facts to which those witnesses would be expected to testify, and explaining why it would be difficult to travel to Erie County to testify (see O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173). Plaintiff's two nonparty material witnesses are decedent's mother and decedent's husband, neither of whom resides in Erie County; decedent's mother resides on Long Island and decedent's husband resides in Wayne County. In addition, neither of those witnesses stated why it would be more convenient for the action to be tried in Erie County. Furthermore, the cause of action arose in Monroe County (see id. at 174). We therefore conclude that the court erred in denying defendants' motions and granting plaintiff's cross motion.
Entered: May 3, 2002
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