Olownia v. Toussaint

• Decision Date: 05 December 1983
• Docket Number: No. 2,No. 1,No. 3,1,2,3
• Citation: Olownia v. Toussaint, 469 N.Y.S.2d 121, 98 A.D.2d 716 (N.Y. App. Div. 1983)
• Parties: Richard T. OLOWNIA, Respondent, v. Peter TOUSSAINT, et al., Appellants. (Action) Peter TOUSSAINT, et al., Plaintiffs, v. Richard OLOWNIA, Defendant; Barbara Phelps, et al., Appellants. (Action) Helen E. BATHRICK, Plaintiff, v. Richard T. OLOWNIA, Respondent; Barbara Phelps, et al., Appellants. (Action)
• Court: New York Supreme Court — Appellate Division

Page 121

469 N.Y.S.2d 121

98 A.D.2d 716

Richard T. OLOWNIA, Respondent, v. Peter TOUSSAINT, et al., Appellants. (Action No. 1)

Peter TOUSSAINT, et al., Plaintiffs, v. Richard OLOWNIA, Defendant;

Barbara Phelps, et al., Appellants. (Action No. 2)

Helen E. BATHRICK, Plaintiff, v. Richard T. OLOWNIA, Respondent;

Barbara Phelps, et al., Appellants. (Action No. 3)

Supreme Court, Appellate Division Second Department.

Dec. 5, 1983.

Spitz, Spitz & Fedorchak, Poughkeepsie (Andrew L. Spitz, Poughkeepsie, of counsel), for appellant Peter Toussaint.

Howard C. St. John and Associates, Kingston (Joseph L. Canino, Kingston, of counsel), for appellant Barbara Phelps.

Jerry I. Lefkowitz, Forest Hills, for respondent.

Before MANGANO, J.P., and GIBBONS, O'CONNOR and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In three negligence actions to recover damages for personal injuries, Peter Toussaint, Helen E. Bathrick and Barbara Phelps separately appeal from an order of the Supreme Court, Queens County, dated September 20, 1982, which, inter alia, granted the motion of plaintiff Olownia for an order joining the three actions, fixed the site of the trial in Queens County, and denied the cross motion of Peter Toussaint for removal of said actions for joint trial in Dutchess County.

Appeal by Helen E. Bathrick dismissed, without costs or disbursements. Said appeal has not been perfected.

Order reversed, plaintiff Olownia's motion is denied, Toussaint's cross motion is granted, the Olownia action is removed from Queens County to Dutchess County and the three actions are joined in Dutchess County, which shall be the site of the trial. On this court's own motion, the title shall be amended as follows: The Toussaint suit shall be designated Action No 1; the Bathrick suit, Action No. 2; and the Olownia suit, Action No. 3.

Appellants Toussaint and Phelps are awarded one bill of costs payable by the respondent.

All of the captioned actions arose from a three-car collision occurring on February 19, 1982, in the Town of Rhinebeck, Dutchess County. The accident was investigated by the New York State Police and a report was filed by Trooper H.D. Bloomer, who is stationed at the Town of Rhinebeck State Police Barracks in Dutchess County. The police report purportedly indicated that "snow and adverse weather conditions" were prevailing at the time of the accident.

A total of eight persons were injured in the accident. The four injured Toussaints--Peter, Sharon, Marie and David--who were all residents of Rhinebeck, located in Dutchess County, received initial medical treatment at Northern Dutchess Hospital. The attending physician at that facility, as well as the physicians who rendered subsequent treatment to the Toussaints, all had their places of business in Dutchess County. Defendant Phelps was initially treated at Northern Dutchess Hospital and was subsequently transferred to Kingston City Hospital in the adjacent County of Ulster. Plaintiff Richard Olownia received initial medical treatment in Dutchess County.

As respects the residences of the principal parties, both Peter Toussaint and Helen Bathrick, the owners/operators of two of the vehicles involved in the collision, resided in Rhinebeck. The owner of the third vehicle, Barbara Phelps, was a resident of Tivoli, which is located in northern Dutchess County. Her vehicle, in which she was a passenger at the time of the accident, was being driven by plaintiff Olownia. Olownia gave his address at the scene of the accident as Harrison, which is in Westchester County.

The first of the three actions to be instituted was that of the Toussaints (originally captioned action No. 2), which was commenced in or about March,...