Timan v Sayegh
2008 NY Slip Op 01850 [49 AD3d 274]
March 4, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008


Yvette Timan, as Executrix of Eric Timan, Deceased, Appellant,
v
Nazar Sayegh, M.D., et al., Respondents, et al., Defendants.

[*1] Scaffidi & Associates, New York City (Robert M. Marino of counsel), for appellant.

Voute, Lohrfink, Magro & Collins, LLP, White Plains (Elliot A. Cristantello of counsel), for Nazar Sayegh, M.D. and Midland Avenue Family Practice, respondents.

Ellenberg & Rigby, LLP, New York City (Charles Lim of counsel), for Ricky Sayegh, M.D., respondent.

Landman Corsi Ballaine & Ford, P.C., New York City (Kenneth J. Burford of counsel), for Christopher Tschinkel and Yonkers Central Park CVS, Inc., respondents.

Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York City (Joseph D'Ambrosio of counsel), for Mile Square Pharmacy, Inc., respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered on or about June 12, 2006, which granted the respective motion and cross motion by defendants Mile Square Pharmacy and Ricky Sayegh to change venue from Bronx to Westchester County and denied plaintiff's cross motion to retain venue in the Bronx, and order, same court and Justice, entered June 20, 2006, which granted the motion by defendants Yonkers Central Park CVS and Tschinkel to change venue from Bronx to Westchester and reiterated denial of plaintiff's cross motion to retain venue in the Bronx, unanimously reversed, on the law, without costs, the motions and cross motion for change of venue denied, and plaintiff's cross motion granted.

Plaintiff's decedent committed suicide in Yonkers, where he had lived with his family. He had been suffering from depression, anxiety, substance abuse and low back pain, and had received medical treatment from the physician defendants, whose medical offices were located in Yonkers. Other nonparty medical providers who had rendered services to the decedent, as noted by defendants, either lived or worked in lower Westchester. The Yonkers Police Department investigated the incident and the Westchester County Medical Examiner's Office conducted the autopsy. Plaintiff commenced the instant action alleging medical malpractice and wrongful [*2]death, claiming the medical and pharmacy defendants were negligent in rendering medical care and/or in the distribution of pharmaceuticals.

Venue was properly laid in the Bronx on the basis of a defendant's residence there (CPLR 503 [a]). In seeking a change of venue to Westchester for the convenience of material witnesses (CPLR 510 [3]), defendants failed to meet their burden of showing, inter alia, that such witnesses had been contacted and would be willing to testify, and how they would be inconvenienced by having to attend a trial in the Bronx (see Heinemann v Grunfeld, 224 AD2d 204 [1996]). Mere general statements as to witness inconvenience are not enough (Hartigan v Kurian, 224 AD2d 299 [1996]). We have rejected a change of venue in similar cases where witnesses predominantly resided or maintained offices in Yonkers and failed to explain how they would be inconvenienced by a trial in the Bronx as opposed to Westchester, particularly given that the distance from Yonkers to the courts in the two counties is roughly the same (see e.g. Rosario v St. John's Riverside Hosp., 11 AD3d 351 [2004]; Preldakaj v Gazivoda, 224 AD2d 280 [1996]; Kurnitz v New Rochelle Hosp. Med. Ctr., 166 AD2d 390 [1990]). Concur—Andrias, J.P., Friedman, Buckley, McGuire and Moskowitz, JJ.