| Jackson v Jamaica Hosp. Med. Ctr. |
| 2014 NY Slip Op 05392 [119 AD3d 1193] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Kevin Jackson, Appellant, v Jamaica Hospital MedicalCenter, Respondent, et al., Defendant. |
Kevin Jackson, Dannemora, appellant pro se.
Martin, Clearwater & Bell, LLP, New York City (Stewart
G. Milch of counsel), for respondent.Devine, J. Appeal from an order of the Supreme Court (Muller, J.), entered January16, 2013 in Clinton County, which, among other things, granted a motion by defendantJamaica Hospital Medical Center to change venue from Clinton County to QueensCounty.
Plaintiff is currently incarcerated at the Clinton Correctional Facility in ClintonCounty upon two convictions for murder in the second degree and weapons charges(People v Jackson, 287 AD2d 520 [2001], lv denied 97 NY2d 705[2002]). In 2006, plaintiff commenced this action against defendant Jamaica HospitalMedical Center (hereinafter defendant) and a record-keeping employee alleging fraudwith regard to certain records related to one of the victims.[FN1]On a previous appeal, we affirmed anorder granting plaintiff's motion to compel discovery (61 AD3d 1166 [2009]). Followingour order, plaintiff received the requested records in October 2009. In December 2011,Supreme Court scheduled a status conference, which was conducted in January2012.
[*2] Following the conference atwhich Supreme Court, among other things, questioned why this action was venued inClinton County, defendant moved for a change of venue from Clinton County to QueensCounty. Plaintiff opposed and cross-moved for, among other things, sanctions andrecusal of Justice Muller. Supreme Court granted defendant's motion to change venueand denied plaintiff's requested relief. Plaintiff now appeals.
Plaintiff contends that this action should not have been transferred. We agree.Inasmuch as the grounds proffered for defendant's motion—namely, plaintiff'sresidence and the convenience of witnesses—were known to it since thecommencement of the action in 2006, the timing of defendant's 2012 motion was notreasonable and it should not have been granted (see Sade San A Jong v Lesesne, 114 AD3d 624, 625[2014]; Horowicz v RSD Transp., 249 AD2d 511, 511 [1998]; Corona vTown of Hancock, 221 AD2d 838, 838 [1995]).[FN2]Furthermore, with regard to defendant'scontention that the action should be transferred for the convenience of material witnesses(see CPLR 510 [3]), its bare assertion that it "presumes that all possible materialwitnesses reside in or near Queens County" is patently insufficient to support a change ofvenue (see State of New York vQuintal, Inc., 79 AD3d 1357, 1357-1358 [2010]; Frontier Ins. Co. in Rehabilitation vBig Apple Roofing Co., Inc., 50 AD3d 1239, 1239-1240 [2008]; Boral vClarkson Univ., 270 AD2d 776, 777 [2000]).
Finally, although we are reversing that part of Supreme Court's order as granteddefendant's motion for a change of venue and this matter will be back before SupremeCourt, we are not persuaded by plaintiff's contention that this matter should be remittedto a different judge. Although we find that Supreme Court abused its discretion ingranting defendant's motion, nothing in the court's handling of this motion regarding awholly procedural issue evinces any partiality on its part with respect to the merits of thisaction or any subsequent issues which may arise.[FN3]Plaintiff's contention regarding hisrecusal motion has otherwise been rendered academic by our decision and his remainingcontentions have been considered and found to be without merit.
Lahtinen, J.P., Stein, Egan Jr. and Clark, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as granted the motionof defendant Jamaica Hospital Medical Center to change venue; motion denied; and, asso modified, affirmed.
Footnote 1:A similar action wascommenced in Queens County in 2002, but was voluntarily discontinued in 2009.
Footnote 2:With regard todefendant's assertion that venue is not proper in Clinton County, defendant failed totimely follow the procedures set forth in CPLR 511 (see CPLR 510 [1]; 511 [a],[b]; Simon v Usher, 17NY3d 625, 628 [2011]; Thomas v Guttikonda, 68 AD3d 853, 854 [2009];Callanan Indus. v Sovereign Constr. Co., 44 AD2d 292, 294-295 [1974]).Defendant's motion thus became one addressed entirely to the discretion of SupremeCourt (see Thomas v Guttikonda, 68 AD3d at 854; Tatko Stone Prods., Inc. vDavis-Giovinzazzo Constr. Co., Inc., 65 AD3d 778, 778 [2009]; CallananIndus. v Sovereign Constr. Co., 44 AD2d at 295).
Footnote 3:To the extent thatplaintiff alleges bias on the part of Supreme Court due to plaintiff's status as a prisonerand/or a "political stance" betrayed by the court's statements or actions, we find plaintiff'sargument to be baseless.