Almazo v. Trumbo's Funeral Chapel, Inc.

Almazo v Trumbo's Funeral Chapel, Inc. 2024 NY Slip Op 32240(U) July 2, 2024 Supreme Court, New York County Docket Number: Index No. 153647/2023 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 153647/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 07/02/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------------------ --------X INDEX NO. 153647/2023 PORFIRIO ALMAZO, GABRIELA ALMAZO, MOTION DATE 06/08/2024 Plaintiff, MOTION SEQ. NO. 001 - V-

TRUMBO'S FUNERAL CHAPEL, INC.,GARDNER EARL MEMORIAL CHAPEL, TROY CEMETERY ASSOC. INC. D/B/A OAKWOOD CEMETERY, BIRCH GROVE CREMATORY INC.,ABC FUNERAL HOMES, ABC DECISION + ORDER ON CEMETERIES AND CREMATORIES, JOHN DOE FUNERAL HOME DIRECTORS AND/OR OWNERS MOTION AND/OR MANAGERS (#1-#10) (FICTITIOUS NAMES, INDIVIDUALS AND/OR ENTITIES)

Defendant. ----------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17 were read on this motion to/for CHANGE VENUE

Upon the foregoing documents, Defendants Gardner Earl Memorial Chapel and Troy

Cemetery Assoc. Inc. d/b/a Oakwood Cemetery's ("Oakwood") (collectively "Moving

Defendants") motion to change venue from New Yark County to Rensselaer County is denied.

L Background

Plaintiffs Porfirio Almazo and Gabriela Almazo (collectively "Plaintiffs") bring this action

alleging mishandling of Maria Moran's ("Decedent"), remains (see generally NYSCEF Doc. 1).

The decedent passed away on April 6, 2020 at Metropolitan Hospital Center in New York

County. Plaintiffs contracted Defendant Trumbo's Funeral Chapel to conduct funeral services on

or around April 20, 2020. Decedent wished to be cremated and her remains were sent to Oakwood.

On April 30th, Plaintiffs were advised that cremation was scheduled for May 4th, 2020. When

they received the cremated remains, they realized that the paperwork in the box containing the

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remains did not match the identifiers of the decedent - notably the date of birth and cremation

were incorrect, as was the hospital information. It was later confirmed by Trumbo that there were

two decedents with the name "Maria Moran" and there was no way to confirm whether Plaintiffs

received the correct cremated remains.

Defendants ask this Court to change venue to Rensselaer County for the convenience of

their witnesses. They have proffered one witness who would be inconvenienced, Bernard Vogel

(NYSCEF Doc. 13). Plaintiffs oppose and argue venue is proper in New York because a substantial

number of events ieading up to this lawsuit occurred here: non-appearing defendant Trumbo's

Funeral Chapel, Inc. is domiciled in New York, the parties contracted in New York, and that the

Plaintiffs would be inconvenienced by being forced to litigate their case almost four hours away

in Rensselaer County.

II. Discussion

In order to obtain a change of venue in the interest of justice, a movant must show the

identity of witnesses, explain why they will be inconvenienced in the properly placed trial, and

explain the nature of the anticipated testimony and why that testimony is material (Cardona v

Aggressive Heating Inc., 180 AD2d 572, 572 (1st Dept 1992)).The material inconvenience of a

party's employee is not a weighty factor in considering a motion for a discretionary change of

venue. (Martinez v Dutchess Landaq, Inc., 301 AD2d 424,425 (1st Dept 2003].)

Here, the Court finds venue should remain in New York County, as Plaintiffs originally

and properly designated. There is only one witness who claims he will be inconvenienced. In this

digital age where it has become the norm to conduct depositions by Zoom, the Court finds that Mr.

Vogel's alleged inconvenience does not outweigh the Plaintiffs choice of forum (Gissen v Boy

Scouts ofAmerica, 26 AD3d 289 [1st Dept 2006]). Moreover, although Trumbo's Funeral Chapel

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has not yet appeared, their employees and agents based in New York County purportedly played

a substantial role in coordinating the cremation. They are the party who actually delivered the

allegedly incorrect remains. Therefore, New York based witnesses from Trumbo's Funeral Chapel

will be highly relevant and would be inconvenienced by a change of venue to Rennselear. The

Plaintiffs are also residents of nearby Bronx County and would likewise be inconvenienced.

The Court, in an exercise of its discretion, finds that justice will not be served by forcing

grieving parties residing in the Bronx to litigate their case in Rensselaer County when venue is

proper and just one defense witness claims to be inconvenienced (see also Hidalgo v Hoge, 217

AD3d 410 [1st Dept 2023] [movants failed to show how justice would be promoted by a change

of venue]). Therefore, the Defendants' motion to change venue is denied.

Accordingly, it is hereby,

ORDERED that Defendants Gardner Earl Memorial Chapel and Troy Cemetery Assoc.

Inc. d/b/a Oakwood Cemetery's motion to change venue from New York County to Rensselaer

County is denied; and it is further

ORDERED that the parties are directed to submit a proposed preliminary conference

order to this Court via e-mail to SFC-Part33-Clerk@nycourts.gov on or before August 7, 2024.

In the event the parties are unable to agree to a proposed preliminary conference order, the

parties are directed to appear for an in-person preliminary conference with the Court on August

14, 2024 at 9:30 a.m. in Room 442, 60 Centre Street, New York, New York; and it is further

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ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

7/2/2024 DATE \/. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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Footnotes

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