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Allen Simon, et al v. Sol M. Usher

New York Supreme and/or Appellate Courts Appellate Division, First Department


March 1, 2012

ALLEN SIMON, ET AL.,
PLAINTIFFS-APPELLANTS,
v.
SOL M. USHER, ET AL.,
DEFENDANTS-RESPONDENTS.

Simon v Usher

Decided on March 1, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Renwick, DeGrasse, Abdus-Salaam, JJ.

Upon remittitur from the Court of Appeals (17 NY3d 625 [2011]), order, Supreme Court, Bronx County (MaryAnn Brigantti-Hughes, J.), entered October 27, 2009, which, in a medical malpractice action, granted the motion of the Usher defendants and defendants Chait, Hartsdale Medical Group, P.C., and White Plains Hospital Center to change venue from Bronx County to Westchester County, unanimously affirmed, without costs.

The motion to change venue was properly granted upon the grounds that, except for defendants Usher and Usher, M.D., P.C., all of the defendants and plaintiffs reside in Westchester County, and that while Usher, M.D., P.C., maintains a satellite office in Bronx County that it rents one day per month, Usher's primary office is located in Westchester County, the office where plaintiff was treated. Thus, movants met their initial burden of establishing that the Bronx County venue chosen by plaintiffs is improper (CPLR 503[a]; 510[1]; Hernandez v Seminatore, 48 AD3d 260 [2008]), and since plaintiffs forfeited their right to select the venue by choosing an improper venue in the first instance, venue is properly placed in Westchester County, where most of the parties reside (Weiss v Wal-Mart Stores E., L.P., 83 AD3d 461 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 1, 2012

CLERK

20120301

© 1992-2012 VersusLaw Inc.



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