Wager v. Pelham Union Free Sch. Dist.

• Decision Date: 15 May 2013
• Citation: 966 N.Y.S.2d 126,2013 N.Y. Slip Op. 03475,108 A.D.3d 84
• Parties: Richard WAGER, et al., appellants, v. PELHAM UNION FREE SCHOOL DISTRICT, defendant third-party plaintiff-respondent, Savin Engineers, P.C., et al., defendants-respondents; Wager Contracting Co., Inc., third-party defendant-respondent. (Action No. 1) Richard Wager, et al., appellants, v. New York City Health & Hospitals Corporation, respondent. (Action No. 2)
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 84

966 N.Y.S.2d 126

2013 N.Y. Slip Op. 03475

Richard WAGER, et al., appellants,

v.PELHAM UNION FREE SCHOOL DISTRICT, defendant third-party plaintiff-respondent,

Savin Engineers, P.C., et al., defendants-respondents;

Wager Contracting Co., Inc., third-party defendant-respondent. (Action No. 1)

Richard Wager, et al., appellants,

v.New York City Health & Hospitals Corporation, respondent. (Action No. 2)

Supreme Court, Appellate Division, Second Department, New York.

May 15, 2013.

Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier and Norman Bard of counsel), for appellants.

Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Vanessa M. Corchia and Jerry Granata of counsel), for defendant third-party plaintiff-respondent.

Rawle & Henderson, LLP, New York, N.Y. (Robert A. Fitch and Marc A. Sherman of counsel), for defendants-respondents.

Stewart, Greenblatt, Manning & Baez (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Donald S. Neumann, Jr.], of counsel), for third-party defendant-respondent.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Fay Ng of counsel), for respondent in Action No. 2.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

DILLON, J.P.

This appeal presents the novel question of whether a governmental entity may waive the benefit of a statutory venue provision in an instance where an action against the governmental entity was commenced in a proper county in the first instance.

On the afternoon of October 31, 2009, Richard Wager (hereinafter Wager) was working on the roof of the Colonial Elementary School in Pelham when a portion of the roof allegedly collapsed without warning. Wager fell two stories to the ground, suffering serious injuries. After the accident, Wager was transported to Jacobi Medical Center in the Bronx, where he remained hospitalized for approximately five weeks. On January 14, 2011, Wager, and his wife Sana Wager suing derivatively, commenced an action in the Supreme Court, Westchester County, asserting causes of action to recover damages for violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence (Action No. 1; hereinafter the Westchester action). The defendants included the Pelham Union Free School District (hereinafter the School District), which allegedly owned the property, and Savin Engineers, P.C., and Robert J. Firneis, who were allegedly retained by the School District to perform construction management, demolition, and construction work at the premises.

While a patient at Jacobi Medical Center, Wager was twice resuscitated. The plaintiffs alleged that on the second such occasion, on November 10, 2009, Wager experienced a cardiac incident when an endotracheal tube became dislodged during an MRI procedure and was not timely replaced, exacerbating existing brain injury and causing new brain injury.

Wager and his wife subsequently commenced a second, separate action against the New York City Health & Hospitals Corporation (hereinafter the NYCHHC), which owns and operates Jacobi Medical Center. They asserted causes of action to recover damages for medical malpractice, lack of informed consent, and negligent hiring and training of personnel. The action was commenced in the Supreme Court, Bronx County (Action No. 2; hereinafter the Bronx action).

All parties agree that both actions were commenced in proper venues. Pursuant to CPLR 504(2), the place of trial of an action against a school district shall be the county where the school district is situated, in this case, Westchester County. Pursuant to section 7401(3) of the New York City Health and Hospitals Corporation Act, contained in McKinney's Unconsolidated Laws of N.Y. § 7381 et seq. (New York City Health and Hospitals Corporation Act, as added by L. 1969, ch. 1016, § 1, as amended), an action against the NYCHHC must be commenced in the county within the City of New York in which the cause of action arose, in this case, Bronx County.

After issue was joined and some documentary discovery was exchanged, the NYCHHC moved in the Supreme Court, Westchester County, to consolidate both actions in Westchester County pursuant to CPLR 602. The NYCHHC specifically argued that the two actions involved common questions of fact and law, as Wager alleged that he sustained brain injuries as a result of his fall at the accident site on October 31, 2009, and as a result of the endotracheal tube becoming dislodged at Jacobi Medical Center on November 10, 2009. The NYCHHC also argued that where related actions are pending in different venues, consolidation typically occurs, absent special circumstances, in the county where the first action was commenced which, in this instance, was Westchester County.

The plaintiffs and the School District opposed the motion, arguing that the Westchester and Bronx actions presented no common questions of fact or law as to liability, that the asserted theories for the recovery of damages were different in each of the two actions, and that a consolidation would otherwise prejudice the parties. Alternatively, the plaintiffs argued that if the Supreme Court were to consolidate the two actions, the consolidated action should be venued in Bronx County, as McKinney's Unconsolidated Laws of N.Y. § 7405 expressly provides that the venue provisions favoring the NYCHHC supersede inconsistent provisions of any other general, special, or local law, such as, in this instance, CPLR 504(2).

In reply to the plaintiffs' opposition, the NYCHHC expressly waived the venue provision contained in section 7401(3) of the New York City Health and Hospitals Corporation Act for actions brought against it.

In the order appealed from, the Supreme Court, Westchester County, found that the two actions presented common questions of fact and law regarding the cause of Wager's brain injuries and the apportionment of liability and damages amongst the defendants and, therefore, consolidated the actions. The Supreme Court did not discuss the competing venue provisions of CPLR 504(2) and McKinney's Unconsolidated Laws of N.Y. §§ 7401(3) and 7405, but, in a decretal paragraph, directed the removal of the Bronx action to Westchester County for its consolidation with the Westchester action.

No appeal has been taken from the portion of the order which consolidated the actions. The plaintiffs' appeal is limited to so much of the order as placed venue of the now-consolidated actions in Westchester County. For the reasons set forth below, we affirm the order of the Supreme Court insofar as appealed from.

I. Relevant Venue Provisions

This is not the first time that a court has been faced with a battle of conflicting venue statutes. CPLR 504(2) provides, in relevant part, that “[n]otwithstanding the provisions of any charter heretofore granted by the state ... the place of trial of all actions against ... school districts and district corporations ... shall be ... in the county in which such ... school district or district corporation is situated” ( see Grumet v. Pataki, 244 A.D.2d 31, 35, 675 N.Y.S.2d 662). The statute uses the mandatory directive of “shall” and applies to “all” actions against school districts. The purpose of CPLR 504, which applies not just to school districts but also to counties, cities, towns, and villages, is to protect municipal entities and their employees from the inconvenience of an alternative venue ( see Hatzipetros v. County of Chemung, 56 A.D.3d 1039, 1039–1040, 868 N.Y.S.2d 793;Swainson v. Clee, 261 A.D.2d 301, 708 N.Y.S.2d 54;Forteau v. County of Westchester, 196 A.D.2d 440, 441, 601 N.Y.S.2d 120;Weissmandl v. Murray Walter, Inc., 147 A.D.2d 474, 537 N.Y.S.2d 574;Babylon Assoc. v. County of Suffolk, 89 A.D.2d 57, 58, 454 N.Y.S.2d 713;Powers v. East Hudson Parkway Auth., 75 A.D.2d 776, 777, 428 N.Y.S.2d 233;cf. Cabreja v. Rose, 50 A.D.3d 457, 856 N.Y.S.2d 567). Nevertheless, and despite the seemingly unforgiving language of the statute, venue may be changed to a non-mandated county upon a showing of special circumstances ( see Hatzipetros v. County of Chemung, 56 A.D.3d at 1040, 868 N.Y.S.2d 793;Vasta v. Village of Liberty, 235 A.D.2d 1006, 1006–1007, 652 N.Y.S.2d 676;Ruiz v. City of New York, 195 A.D.2d 327, 327–328, 599 N.Y.S.2d 822;Babylon Assoc. v. County of Suffolk, 89 A.D.2d at 58, 454 N.Y.S.2d 713).

For actions against the City of New York, CPLR 504(3) directs that venue be placed in the county within the city in which the cause of action arose ( seeCPLR 504[3] ). The New York City Health and Hospitals Corporation Act contains a provision virtually identical to CPLR 504(3), requiring that actions against the NYCHHC “be brought in the City of New York, in the county within the city in which the cause of action arose” (McKinney's Uncons. Laws of N.Y. § 7401[3]; see Ramsey v. City of New York, 145 Misc.2d 537, 538–539, 547 N.Y.S.2d 185). However, unlike its CPLR counterpart, it contains a further provision that if the New York City Health and Hospitals Corporation Act is “inconsistent with the provisions of any other law, general, specific or local, the provisions of this act shall be controlling” (McKinney's Uncons. Laws of N.Y. § 7405; see Ramsey v. City of New York, 145 Misc.2d at 539, 547 N.Y.S.2d 185).

The venue provisions for school districts were added to CPLR 504(2) in 1966 ( see L. 1966, ch. 444). The statute giving primacy to the venue provisions specific to the NYCHHC was enacted three years later, in 1969, as part of the enabling legislation creating a public benefit corporation to operate the municipal hospitals in the City of New York ( see L. 1969, ch. 1016, § 1). The Legislature is presumed to be aware of the law in existence at the time of an enactment, as well as of the effect and implications of its own enactments ( see Matter of Dandomar Co., LLC v. Town of Pleasant Val. Town Bd., 86 A.D.3d 83, 92, 924 N.Y.S.2d 499;Brady v. Village of Malverne, 76...