Schneeweiss v. Pelkey

• Court: New York Supreme Court — Appellate Division
• Citation: Schneeweiss v. Pelkey, 525 N.Y.S.2d 846, 138 A.D.2d 271 (N.Y. App. Div. 1988)
• Decision Date: 22 March 1988
• Parties: Michael SCHNEEWEISS, et al., Plaintiffs-Appellants v. Lloyd H. PELKEY, Defendant-Respondent.

Page 846

525 N.Y.S.2d 846

138 A.D.2d 271

Michael SCHNEEWEISS, et al., Plaintiffs-Appellants v. Lloyd H. PELKEY, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

March 22, 1988.

H. Schmertz, New York City, for plaintiffs-appellants.

J.D. Morio, New York City, for defendant-respondent.

Before MURPHY, P.J., and ROSS, CARRO, KASSAL and ELLERIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered May 26, 1987, which granted defendant's motion for a change of venue from Bronx County to Dutchess County, is unanimously reversed, on the law, on the facts, and in the exercise of discretion, and the motion is denied, without costs.

Appeal from order of the Supreme Court, Bronx County (Bertram Katz, J.), entered July 13, 1987, which denied plaintiffs' motion for reargument and/or renewal, is treated as one for reargument, and dismissed as non-appealable, without costs.

On October 12, 1985, at approximately 10:00 P.M., Mr. Michael Schneeweiss (Mr. Schneeweiss) and Mrs. Joan Schneeweiss (Mrs. Schneeweiss) were walking near the intersection of Old Route 22 and East Duncan Hill Road in Dover Plains, Dutchess County, New York, when they were struck by a motor vehicle, which was operated by Mr. Lloyd H. Pelkey (Mr. Pelkey). Since Mr. and Mrs. Schneeweiss were injured, a Dutchess County volunteer ambulance transported them to Sharon Hospital, which was located in Sharon, Connecticut. Following two days of treatment at Sharon Hospital, they were moved by ambulance to Columbia Presbyterian Medical Center (Columbia Presbyterian) in New York County, where they were hospitalized from October 14, to November 1, 1985.

Mr. and Mrs. Schneeweiss each suffered multiple comminuted fractures of both legs, which required surgery. In addition, Mrs. Schneeweiss suffered a fractured left collar bone, and a post-operative pulmonary embolism. As a result of her injuries, on November 20, 1985, Mrs. Schneeweiss was readmitted to Columbia Presbyterian for another week of hospitalization. Thereafter, in March 1987, Mrs. Schneeweiss underwent further leg surgery at the Hospital for Joint Diseases, Orthopedics Institute, in New York County.

In January 1986, Mr. and Mrs. Schneeweiss (plaintiffs) commenced an action in Bronx County, where they then resided, against Mr. Pelkey (defendant) to recover damages for personal injuries and loss of services. Defendant answered, and demanded that venue be changed to Dutchess County, but, plaintiffs refused to consent.

Subsequently, in March 1987, defendant moved, pursuant to CPLR § 510 and rule 511, to change the venue to Dutchess County. The IAS Court granted defendant's motion.

The defendant contends, in substance, that venue should be placed in Dutchess County, where the accident occurred and for the convenience of the following possible Dutchess County witnesses: Mr. and Mrs. John Pollack, who were not eyewitnesses, but who allegedly saw plaintiffs in the vicinity of the accident, the volunteer ambulance attendants, who transported the plaintiffs from the accident scene to the Connecticut Hospital, and, Police Sergeant Corbett, who made out the accident report.

While defendant's "factual showing concerning the convenience of witnesses has superficial logic, ... [it] does not withstand close scrutiny ..." ( Wecht v. Glen Distributors Company, 112 A.D.2d 891, 892, 493 N.Y.S.2d 313 (1st Dept.1985)) [material in brackets added], since our review of the record indicates that the defendant has not convincingly set forth "[t]he materiality of [these] witnesses' testimony ... ( Farra v. Hesseltine, 134 A.D.2d 788, 789, 522 N.Y.S.2d 35, 36 (1987)) [material in brackets added].

Although "[t]he general rule is that a transitory action ... should be tried in the county in which the cause of action arose ( Slavin v. Whispell, 5 AD...