APPEAL by the plaintiffs, in related actions, inter alia, to recover damages for personal injuries and medical malpractice, etc., as limited by their brief, from so much of an order of the Supreme Court (Bruce E. Tolbert, J.), entered in Westchester County on November 30, 2011, as, upon granting that branch of the motion of the New York City Health & Hospitals Corporation pursuant to CPLR 602(a) which was to consolidate the action entitled Wager v Pelham Union Free School District, pending in the Supreme Court, Westchester County, under Index No. 2695/11 (Action No. 1), with the action entitled Wager v New York City Health & Hospitals Corporation, pending in the Supreme Court, Bronx County, under Index No. 302208/11 (Action No. 2), in effect, granted that branch of the same motion which was to place venue of the actions in Westchester County.
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, ROBERT J. MILLER, JJ.
OPINION & ORDER
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 NY § 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, ...