Lawrence v. Williams

This is a personal injury and wrongful death action to recover damages resulting from the death of the infant plaintiff, Nikesha Lawrence, who died shortly after her birth at the defendant Mount Vernon Hospital, located in Westchester County. The action was commenced by service of summons and complaint on June 12, 1986, with venue set in Bronx County on the basis of the long-term residence of plaintiff mother and administratrix, Norma Lawrence. (CPLR 503.) Issue was joined by defendants in July 1986.

In August 1988, defendants moved for a change of venue to Westchester County on grounds of improper venue, citing CPLR 504, and convenience of material witnesses (CPLR 510 [3]).

While the motion court properly rejected, as untimely, the branch of defendants’ application based upon improper venue (see, CPLR 511 [a], [b]), it granted the motion on the basis of witness convenience. This was an abuse of discretion.

First, we note that the sole witnesses actually named in defendants’ motions were the defendant physicians. It is well established that the convenience of party witnesses is not to be considered on a motion for change of venue (Stavredes v United Skates, 87 AD2d 502) and that a mere reference to unspecified nonparty material witnesses is insufficient for CPLR 510 (3) purposes. (See, Wecht v Glen Distribs., 112 AD2d 891.)

Furthermore, the record makes clear that defendants did not move for this discretionary relief within "a reasonable time after commencement of the action” (CPLR 511 [a]), particularly in light of the fact that the delay of over two years is unexplained. Indeed, defendants’ applications are not only untimely, but are also barred by laches, "[s]ince the facts now argued were as apparent at the time the action was commenced as they are now”. (Boriskin v Long Is. Jewish-Hillside Med. Center, 85 AD2d 523; see, Rosa v Shavelson, 149 AD2d 371.) Concur—Kupferman, J. P., Milonas, Kassal, Wallach and Rubin, JJ.