                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 17, 2014                     517880
________________________________

KEVIN JACKSON,
                    Appellant,
     v
                                            MEMORANDUM AND ORDER
JAMAICA HOSPITAL MEDICAL
   CENTER,
                    Respondent,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   June 6, 2014

Before:   Lahtinen, J.P., Stein, Egan Jr., Devine and Clark, JJ.

                             __________


     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 January 16, 2013 in Clinton County, which, among other
things, granted a motion by defendant Jamaica Hospital Medical
Center to change venue from Clinton County to Queens County.

      Plaintiff is currently incarcerated at the Clinton
Correctional Facility in Clinton County 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
Hospital Medical Center (hereinafter defendant) and a record-
keeping employee alleging fraud with regard to certain records
                               -2-                517880

related to one of the victims.1 On a previous appeal, we
affirmed an order granting plaintiff's motion to compel discovery
(61 AD3d 1166 [2009]). Following our order, plaintiff received
the requested records in October 2009. In December 2011, Supreme
Court scheduled a status conference, which was conducted in
January 2012.

      Following the conference at which Supreme Court, among
other things, questioned why this action was venued in Clinton
County, defendant moved for a change of venue from Clinton County
to Queens County. Plaintiff opposed and cross-moved for, among
other things, sanctions and recusal of Justice Muller. Supreme
Court granted defendant's motion to change venue and 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's residence and the
convenience of witnesses – were known to it since the
commencement of the action in 2006, the timing of defendant's
2012 motion was not reasonable 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 v Town
of Hancock, 221 AD2d 838, 838 [1995]).2 Furthermore, with regard
to defendant's contention that the action should be transferred
for the convenience of material witnesses (see CPLR 510 [3]), its


     1
        A similar action was commenced in Queens County in 2002,
but was voluntarily discontinued in 2009.
     2
        With regard to defendant's assertion that venue is not
proper in Clinton County, defendant failed to timely follow the
procedures set forth in CPLR 511 (see CPLR 510 [1]; 511 [a], [b];
Simon v Usher, 17 NY3d 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 Supreme Court (see Thomas
v Guttikonda, 68 AD3d at 854; Tatko Stone Prods., Inc. v Davis-
Giovinzazzo Constr. Co., Inc., 65 AD3d 778, 778 [2009]; Callanan
Indus. v Sovereign Constr. Co., 44 AD2d at 295).
                                -3-                  517880

bare assertion that it "presumes that all possible material
witnesses reside in or near Queens County" is patently
insufficient to support a change of venue (see State of New York
v Quintal, Inc., 79 AD3d 1357, 1357-1358 [2010]; Frontier Ins.
Co. in Rehabilitation v Big Apple Roofing Co., Inc., 50 AD3d
1239, 1239-1240 [2008]; Boral v Clarkson Univ., 270 AD2d 776, 777
[2000]).

      Finally, although we are reversing that part of Supreme
Court's order as granted defendant's motion for a change of venue
and this matter will be back before Supreme Court, we are not
persuaded by plaintiff's contention that this matter should be
remitted to a different judge. Although we find that Supreme
Court abused its discretion in granting defendant's motion,
nothing in the court's handling of this motion regarding a wholly
procedural issue evinces any partiality on its part with respect
to the merits of this action or any subsequent issues which may
arise.3 Plaintiff's contention regarding his recusal motion has
otherwise been rendered academic by our decision and his
remaining contentions have been considered and found to be
without merit.

        Lahtinen, J.P., Stein, Egan Jr. and Clark, JJ., concur.


      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted the motion of
defendant Jamaica Hospital Medical Center to change venue; motion
denied; and, as so modified, affirmed.



                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court


    3
        To the extent that plaintiff alleges bias on the part of
Supreme Court due to plaintiff's status as a prisoner and/or a
"political stance" betrayed by the court's statements or actions,
we find plaintiff's argument to be baseless.
