        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

666
CA 11-02552
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


LAWRENCE D. SEGUIN AND KATHLEEN M. SEGUIN,
PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

MATTHEW J. LANDFRIED, M.D., GENESEE
ORTHOPAEDICS AND SPORTS MEDICINE, LLP,
VALERIE S. THOMAS, P.A., PETER T. JANES, M.D.,
DEBRA M. OMIATEK, M.D., JOHN A. BRACH, M.D.,
MICHAEL D. MERRILL, M.D., JOSEPH V. OTTEN, M.D.,
UNITED MEMORIAL MEDICAL CENTER,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (J. MARK GRUBER OF
COUNSEL), FOR DEFENDANTS-APPELLANTS MATTHEW J. LANDFRIED, M.D.,
GENESEE ORTHOPAEDICS AND SPORTS MEDICINE, LLP, VALERIE S. THOMAS,
P.A., AND JOSEPH V. OTTEN, M.D.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ANGELO S. GAMBINO OF
COUNSEL), FOR DEFENDANTS-APPELLANTS PETER T. JANES, M.D., DEBRA M.
OMIATEK, M.D., JOHN A. BRACH, M.D., AND MICHAEL D. MERRILL, M.D.

FELDMAN KIEFFER, LLP, BUFFALO (RANDY C. MALLABER OF COUNSEL), FOR
DEFENDANT-APPELLANT UNITED MEMORIAL MEDICAL CENTER.

BRIAN P. FITZGERALD, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeals from an order of the Supreme Court, Erie County (Tracey
A. Bannister, J.), entered July 19, 2011 in a medical malpractice
action. The order denied the motions of defendants-appellants for a
change of venue.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed in the exercise of discretion without costs and
the motions are granted.

     Memorandum: We agree with defendants-appellants (defendants)
that Supreme Court improvidently exercised its discretion in denying
their respective motions pursuant to CPLR 510 (3) seeking to change
the venue of this medical malpractice action from Erie County to
Genesee County (see Costello v Forbes, 294 AD2d 856). In support of
their motions, defendants provided, inter alia, the physicians’
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                                                         CA 11-02552

affirmations and nurses’ affidavits of 14 nonparty witnesses who
treated Lawrence D. Seguin (plaintiff) at defendant United Memorial
Medical Center in Genesee County and at Strong Memorial Hospital in
Monroe County. The nonparty witnesses stated the nature of their
treatment of plaintiff and their respective reasons for the
inconvenience of traveling from their respective homes or places of
work to Erie County (see McLaughlin v City of Buffalo, 259 AD2d 1014,
1015; cf. Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15
AD3d 899). Plaintiff Kathleen M. Seguin, who has asserted a
derivative cause of action, moved to Erie County several months
following plaintiff’s treatment and it is upon the basis of her
residence that the action was commenced in Erie County. Plaintiffs
have “failed to demonstrate any other consideration that would favor
[Erie] County as the proper venue of this action” (McLaughlin, 259
AD2d at 1015; see Costello, 294 AD2d at 856-857). We therefore
conclude that defendants established that “the convenience of material
witnesses and the ends of justice will be promoted by the change” of
venue (CPLR 510 [3]; cf. 1093 Group, LLC v Canale, 72 AD3d 1561,
1562).




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
