                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 22, 2015                   520780
________________________________

HEALTHCARE PROFESSIONALS
   INSURANCE COMPANY,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

MICHAEL A. PARENTIS,
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   September 10, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                             __________


      Hitchcock & Cummings, LLP, New York City (Terry Cummings of
counsel), for appellant.

      Phillips Lytle, LLP, Buffalo (William J. Brennan of
counsel), for respondent.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Connolly, J.),
entered December 22, 2014 in Albany County, which granted
defendant Michael A. Parentis' motion to change venue from Albany
County to Erie County.

      In February 2014, an Erie County jury awarded defendants
Donald Schultz and Katherine Schultz a verdict in a medical
malpractice action totaling $8.6 million against defendant
Michael A. Parentis. At the time of the verdict, Parentis had
liability insurance coverage totaling $2.3 million per claim
through a $1.3 million policy with defendant Medical Liability
                              -2-                520780

Mutual Insurance Company (hereinafter MLMIC) and a $1 million
excess coverage policy with plaintiff. Plaintiff commenced a
declaratory judgment action in Albany County seeking a
determination that it acted in good faith during settlement
negotiations in the underlying action and that its obligation to
indemnify Parentis is limited to $1 million. In his answer,
Parentis asserted a counterclaim alleging that plaintiff acted in
bad faith by refusing to tender the maximum coverage under the
policy and enter into a settlement with the Schultzes during jury
deliberations. Parentis moved to change venue of the action from
Albany County to Erie County. Supreme Court granted the motion,
determining that the interest of justice would be promoted by a
change of venue to Erie County. Plaintiff now appeals.

      A discretionary change of venue may be granted when the
moving party is able to demonstrate that the "convenience of
material witnesses and the ends of justice will be promoted by
the change" (CPLR 510 [3]; see State of New York v Quintal, Inc.,
79 AD3d 1357, 1357 [2010]). Such an application "is addressed to
the convenience of nonparty witnesses; that of parties and their
employees or agents carries little if any weight" (State of New
York v Quintal, Inc., 79 AD3d at 1357-1358 [internal quotation
marks and citations omitted]). To this end, the movant is
required to "proffer detailed relevant information establishing
that the convenience of the nonparty witnesses would be enhanced"
(Hyman v Schwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24
NY3d 930 [2014] [internal quotation marks and citations omitted])
and "assert the names and addresses of the witnesses, the
substance and materiality of their expected testimony . . .,
their willingness to testify and the manner in which they will be
inconvenienced by a trial in the venue where the action was
commenced" (Frontier Ins. Co. in Rehabilitation v Big Apple
Roofing Co., Inc., 50 AD3d 1239, 1239 [2008]; accord State of New
York v Quintal, Inc., 79 AD3d at 1357).

      Here, Brian Weidner, the attorney retained by MLMIC to
represent Parentis in the underlying action, William Brennan,
Parentis' attorney in this action, and Parentis each submitted an
affidavit in support of the motion to change venue. Parentis
averred that his orthopedic practice located in Erie County
would be burdened by a trial of the action in Albany County.
                                -3-                520780

Weidner averred that he would be inconvenienced because he
resides and works in Erie County. While the Schultzes did not
appear in support of the motion, Jeffrey Black, their attorney,
submitted an affidavit wherein he averred that Donald Schultz, an
amputee, would be burdened by having to travel to Albany County
and that Black himself would be inconvenienced if he were forced
to leave his active law practice located "in the Western New York
area" to attend a trial in Albany County. Although the MLMIC
claims representative who attended the underlying trial was
characterized as a "key witness," Parentis does not submit an
affidavit by that individual to explain how he or she would be
inconvenienced by a trial in Albany County.

      In our view, plaintiff properly commenced this action in
Albany County, the location of its principal place of business
(see CPLR 503 [a], [c]). Even where, as here, an action is
transitory,1 the moving party must support an application for a
venue change with the required detailed information (see State of
New York v Quintal, Inc., 79 AD3d at 1358; O'Brien v Vassar Bros.
Hosp., 207 AD2d 169, 173-174 [1995]). Here, as Supreme Court
noted, with the arguable exception of Weidner, each of the
affiants supporting the venue change was either a party or an
employee or agent of a party. Further, none confirmed that he
would be willing to testify nor did any provide any detail with
regard to the substance of his testimony (see Matter of Supplier
Distrib. Concepts, Inc., 80 AD3d 869, 871 [2011]). To be
remembered, the underlying medical malpractice claim has already
been established, leaving the operative issue here whether
plaintiff engaged in good faith settlement negotiations while the
jury was deliberating – events principally involving the parties
and their respective employees and/or agents. Based on the
submissions, the motion to change venue should have been denied.

        Lahtinen, J.P., Garry and Devine, JJ., concur.




    1
        A transitory action is one that does not affect or
involve real estate or chattel (see O'Brien v Vassar Bros. Hosp.,
207 AD2d 169, 173 [1995]).
                              -4-                  520780

      ORDERED that the order is reversed, on the law, with costs,
and motion denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
