Venue in New York medical malpractice litigation is based upon the residence of the parties at the time the case is commenced. A party may be a resident of more than one county, but residence implies a bona fide intent to remain with some degree of permanency. CPLR §503, as discussed in Deas v. Ahmed, 120 A.D.3d 750 (2d Dept. 2014). Although venue is usually a matter to be settled in the pleadings stage of the action, there are developments in the investigatory, discovery and trial preparation stages which may bring venue issues before the court at virtually any point before trial.

The focus in venue litigation is generally whether the attorney for the plaintiff has chosen a proper county in preparing the complaint, or whether the court should exercise its discretion to change the chosen venue based upon the convenience of material witnesses and the interests of justice. CPLR Rule 511. The defendant is most often required to raise issues with regard to proper county by the time the answer is served, and move on any other ground within a reasonable time after the action is commenced. Contractual venue provisions and changes of venue because an impartial trial cannot be obtained in an otherwise proper county are beyond the purview of this article, but venue can be an issue litigated up to the point of the selection of the jury for trial.

Litigation of CPLR Article 5 Issues

The predominant case law on Article 5 issues in medical malpractice defense relate to the questions of whether the county chosen by the plaintiff was in fact proper, and whether the chosen venue suits the convenience of material witnesses. The statutory terms are often construed strictly but there is room for the court to exercise discretion. Accordingly, a full understanding of the statutes and cases will produce better results and save considerable time.

In Moracho v. Open Door Family Medical Center, 79 A.D.3d 581 (1st Dept. 2010), a divided court addressed the obligation of the defendant's attorney to respond promptly to a venue issue which arose after the completion of discovery. When the defendant whose residence in Manhattan had justified the New York County venue successfully moved for summary judgment, the lower court had observed in its decision that the case was amenable to a motion for change of venue to Westchester County. However, the remaining defendant waited three months after the decision and fifteen months after the motion had been made to move for the change of venue. Although the motion to change venue was granted by the lower court which felt it had been made within a reasonable time, the Appellate Division reversed. The appeals court suggested that the remaining defendant should have cross-moved for the change of venue when the summary judgment motion was made, in the event that summary judgment was granted.

Strict adherence to the terms and definitions under Article 5 also requires the attention of counsel. In Deas, the defendant served a timely demand for a change of venue followed by a timely motion based upon the argument that Kings County was not a proper county and venue was properly in New York County. The motion was based upon an accident report which reflected a Manhattan address for the plaintiff at the time of the accident. However, the movant encountered two separate problems. The trial court's denial of the change of venue was affirmed, based upon the argument that the plaintiff could simultaneously have residence in more than one county, and that New York County residence at the time of the event two years before the action was commenced did not disprove Kings County residence at the time the action was commenced.

The Convenience of Material Witnesses

Before moving for a discretionary venue change based upon the convenience of material witnesses it would be advisable for counsel to review not only CPLR §510(3) but the decisions of the courts which have applied the statute in exercising that discretion. It is not enough to show that the predominant witnesses are in the county to which the change is requested. The successful motion is based upon a showing that there are witnesses, who are not parties or employees of parties, whose testimony will be material to the resolution of the issues to be tried, even if the requested county is not shown to be where the cause of action arose. Jansen v. Bernhang, 149 A.D.2d 468 (2d Dept. 1989). The movant is required to demonstrate that the non-party witnesses have been identified and are willing to testify in the requested county but that testifying in the county where the case is currently venued would be a great inconvenience. Coluck v. Sem, 175 A.D.3d 593 (2d Dept. 2019).

Most importantly, the moving papers must set forth the expected testimony of the witnesses in sufficient detail to demonstrate the materiality of their testimony and allow the Court to determine whether their testimony is necessary to the determination of the issues to be resolved. Walsh v. Mystic Tank Lines, 51 A.D.3d 908 (2d Dept. 2008). The appellate decisions are virtually unanimous in holding counsel to the obligation of demonstrating each of these elements before a change of venue will be granted on the basis of the convenience of material witnesses.

Issues Pertaining to Proper County

Perhaps the greatest leniency for late motions to change venue based on the proper county argument is seen in cases where the Court finds that plaintiff has employed misleading tactics or manipulation of the venue provisions to support forum shopping. When counsel for the plaintiff provided a house in the Bronx to his Staten Island plaintiffs seven days before commencing the case on their behalf, the lower court denied a motion to change venue made five years after the case was filed. The Appellate Division reversed and granted the change of venue to correct the fraud upon the court. Koschak v. Gates, 225 A.D.2d 315 (1st Dept. 1996).

In a similar case the lower court denied the motion for a change of venue two years after the case was commenced, where the plaintiff resided in Richmond County but obscured that fact in choosing New York County venue. The Appellate Division, relying on the misleading tactics of plaintiff's counsel, reversed and allowed the requested change of venue. Philogene v. Fuller, 167 A.D.2d 178 (1st Dept. 1990).

Another common basis for a successful venue changed based upon proper county grounds late in the trial preparation stage arises in the context of summary judgment motions after the filing of the note of issue. The facts of the underlying action may involve treatment in more than one county, although the county with the venue most attractive to the plaintiff is not the county which has the significant contact with the actionable facts. Where New York County venue was chosen based upon the residence of a subsequent treating hospital, Justice Stanley Sklar granted a change of venue to Nassau County when he awarded summary judgment to the Manhattan hospital six years after the action had been commenced. The Appellate Division observed that the motion was made promptly after the remaining defendant in the case was able to show that the New York Hospital should not have been a party to the case. Caplin v. Ranhofer, 167 A.D.2d 155 (1st Dept. 1990).

Where the lower court has exercised its discretion to deny such a motion, the Appellate Division has reversed on the ground that proper venue may not be established by joining an improper defendant. Schorzo v. Safdar, 134 A.D.3d 511 (1st Dept. 2015). Where the summary judgment motion of the improper defendant was denied in the lower court, the Appellate Division has, in reversing that decision, granted the attendant motion to change venue to a proper county. Mitts v. H.I.P. of Greater New York, 104 A.D.2d 318 (1st Dept. 1984).

As might be expected, the discontinuance of claims against the sole resident of the venue chosen by plaintiff also removes the basis for that venue being a proper county. The Appellate Division affirmed the transfer of venue from the Bronx to Westchester County by Justice Stanley Green after plaintiff discontinued his claims against the only defendant who resided in the Bronx. The court held that the voluntary discontinuance demonstrated that the doctor was legally blameless and an improper party from the outset, and sustained the change of venue. Crew v. St. Joseph's Medical Center, 19 A.D.3d 205 (1st Dept. 2005). It is interesting to note that even where Justice Green subsequently denied such a motion shortly before jury selection, the Appellate Division still held that there was "absolutely no reason to retain venue in Bronx County." Clase v. Sidoti, 20 A.D.3d 330 (1st Dept. 2005).

The timing of the motion to change venue close to the time of trial can be critical in the situation where venue is based on the residence of a single defendant in the venue chosen by plaintiff. Although that defendant may have considerably less exposure than the defendants in the venue more desirable to those other defendants, it is difficult to prove that a party who remains in the case is an "improper" defendant. Martinez v. Tsung, 14 A.D.3d 399 (1st Dept. 2005); Yanez v. Western Beef, 28 A.D.3d 751 (2d Dept. 2006).

Conclusion

The prompt evaluation of and response to venue issues when they arise is important to the defense of medical malpractice claims. The parameters governing the resolution of those issues, set forth in the decisions interpreting CPLR Article 5, require close attention.

John L.A. Lyddane is a partner at Dorf & Nelson who has extensive experience in jury trials of technically complicated liability matters, including professional liability cases and construction-related lawsuits.