Risoli v. Long Island Lighting Co.

Order, Supreme Court, New York County (Alfred M. Ascione, J.), entered on or about July 9, 1987, which, inter alia, denied the motion of defendant Long Island Lighting Company for change of venue to Nassau County, modified, on the law, the facts, and in the exercise of discretion, to the extent of granting said motion for change of venue, and otherwise affirmed, without costs and disbursements. This is an action to recover damages for personal injuries sustained by plaintiff, who suffered burns to her head and arms as the result of an explosion which occurred when she attempted to light a cigarette with a Bic lighter set on a high flame. The accident took place on March 13, 1984, in the employee’s restroom of the Ground Round Restaurant, located on the Nassau-Suffolk County border, where plaintiff was employed as a waitress. By service of summons and complaint on March 1, 1985, plaintiff commenced suit against defendant-appellant Long Island Lighting Company (LILCO) and defendants owners of the building housing the restaurant, alleging that the explosion was caused by the seepage of natural gas from service lines LILCO maintained on the premises. At the time of the accident, plaintff resided in Nassau County with her boyfriend. In January 1985, 8 months after the accident and 2 months before bringing suit, she moved to New York County, where she lived in the apartment of a cousin, while obtaining medical care and psychiatric treatment. The action was commenced on March 1, 1985, with plaintiffs New York County residence cited as the basis for venue. In March 1986, plaintiff moved her residence back to her boyfriend’s Nassau County apartment. On or about July 5, 1985, LILCO moved for a change of venue to Nassau County. Following reference to a Special Referee to hear and report as to the bona tides of plaintiffs New York County residency, and the Referee’s findings that such residency had been established, the court below denied LILCO’s motion and granted plaintiffs cross motion to confirm the Referee’s report. We now modify to the extent of granting the motion to change venue to the County of Nassau. While cognizánt of the general rule that a determination on a motion for a change of venue lies within the discretion of the court (Wecht v Glen Distribs. Co., 112 AD2d 891, 892), the case before us presents a confluence of factors so favoring venue in Nassau County that we conclude the court abused its discretion and erred in denying the motion. (See, McGuire v General Elec. Co., 117 AD2d 523.) [318] Initially, we note that this court has long followed the rule that, other things being equal, a transitory action should be tried in the county where the cause of action arose. (McGuire v General Elec. Co., supra, at 523-524; Slavin v Whispell, 5 AD2d 296.) We have held that, the phrase "other things being equal” refers to the number of witnesses residing in the competing counties and that where "the county with the preponderance of witnesses is the county in which the cause of action arose, venue should be therein placed”. (Seabrook v Good Samaritan Hosp., 58 AD2d 538.) A further consideration which has evolved with respect to proper venue is the nature of the witnesses’ testimony. In this regard, our prior determinations instruct that the convenience of nonparty witnesses whose testimony will ultimately bear on the issue of damages is subordinate to the convenience of nonparty witnesses who will give testimony on questions of liability. (See, e.g., Katz v Goodyear Tire & Rubber Co., 116 AD2d 506, 507-508; Brunner v Joubert, 118 AD2d 424, 425.) Applying these principles to the case at bar, we note that plaintiff’s injuries occurred in a Farmingdale, Long Island, restaurant situated on the Nassau-Suffolk County border, and that the great preponderance of nonparty witnesses reside or work in Nassau or Suffolk County. Of these, LILCO has listed no fewer than 20 potential witnesses on the issue of liability, including 8 civilian witnesses, 8 volunteer firefighters, and 4 members of the Suffolk County Police Department. In stark contrast, plaintiff’s potential New York County witnesses number three—all as to damages. While the convenience of these three witnesses, who are medical experts, is a factor to be weighed, it is, as previously noted, subordinate to the convenience of the liability witnesses. (Chung v Kivell, 57 AD2d 790.) Moreover, these witnesses would have to be viewed as being on at least equal footing with the potential medical witnesses who treated plaintiff at the Nassau County Medical Center, where she was rushed on the night of the accident and where she remained hospitalized for a period of one month. Although the convenience of the parties and their employees is irrelevant in venue determinations (Wecht v Glen Distribs. Co., supra, at 892), it cannot escape note that even plaintiff’s own convenience would be furthered by venue in Nassau County, since she has moved back there. Of actual, and indeed critical, relevance, is the simple fact that it is solely with regard to plaintiff’s three New York County doctors that a claim of inconvenience may be asserted. For the [319] reasons above stated, such a claim fails to constitute a cogent reason upon which to ground a departure from the longstanding rule that the venue of a transitory action should be where the action arose. (See, Chung v Kivell, supra.) In a writing that makes lengthy reference to liability evidence which may or may not be admitted at trial, evaluates this evidence, and concludes that “the only disputed issue as to which identifiable witnesses have relevant testimony concerns damages”, our dissenting colleague would disregard the well-established guidelines this court has long followed in deciding issues of venue. We respectfully decline to adopt this novel approach, the effect of which is tantamount to a grant of summary judgment on the issue of liability. It cannot be too heavily emphasized that the review of factors to be considered in a motion to change venue must not include an assessment of potential trial evidence or an evaluation of the merits of the parties’ claims, and surely does not permit determination as to liability. It is only because we wish to avoid the very pitfalls we here point out that we refrain from reciting the various countervailing claims that can be asserted on behalf of the defendants. We leave such arguments to be made by the parties, at the appropriate time, and in the proper forum. Accordingly, we have considered the number of potential witnesses living or working in the competing counties, whether their testimony will bear on the issue of liability or of damages, and the total absence of a nexus between the accident and the County of New York, and conclude that these factors preponderate to support transfer to Nassau County, and that "the ends of justice will be promoted by the change.” (CPLR 510 [3].) Concur—Ross, Kassal and Rosenberger, JJ.