(Download) "Donna Messinger v. Alfred Festa" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Donna Messinger v. Alfred Festa
- Author : Supreme Court of New York
- Release Date : January 31, 1983
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 60 KB
Description
In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Rockland County (Gurahian, J.), dated March 30, 1982, which granted the motions of the third parties for a change of venue from Rockland County to Cayuga County. Order reversed, without costs or disbursements, and motions for a change of venue denied. In September, 1981 plaintiff, a student at SUNY at Oswego and a resident of Rockland County, was a passenger in a car driven by defendant Alfred Festa. While the car was being driven over a dirt road skirting a cliff overlooking Lake Ontario, it went over the cliff, causing injuries that resulted in plaintiff becoming a paraplegic. Two of the other passengers in the car were seniors at the State University at Oswego whose permanent residences were in Rockland and Suffolk Counties, respectively. The action was brought in Rockland County against the driver and the Rochester Gas & Electric Corporation (R G&E), which allegedly owned the property where the accident happened. The claim against R G&E was based on the allegation that it negligently permitted vehicles to use the road and allowed it to become overrun with foliage. R G&E impleaded the Town of Sterling, asserting that the town was negligent "in the construction, maintenance and warnings on its property at or near the location of the accident". The town and R G&E subsequently moved for a change of venue to Cayuga County, contending that CPLR 504 (subd 2) requires that an action against a town be brought in the county in which the town is situated, the cause of action accrued in Cayuga County, the passengers would not be inconvenienced by a change in venue since they were students at the State University at Oswego, and a speedier trial would be obtained in Cayuga County. Plaintiff opposed the application on the grounds that travel to Cayuga County would interrupt the special rehabilitation care that she now receives at home, her medical witnesses from New York City would be inconvenienced by a change of venue to Cayuga, and the passengers live in or are substantially closer to Rockland County than to Cayuga County. Despite its apparently mandatory tone, CPLR 504 does not foreclose the court from considering the discretionary grounds for change or retention of venue set forth in CPLR 510 (subd 3) (see Windhurst v Town of Thompson, 78 A.D.2d 930; Wilson v Sponable, 77 A.D.2d 799). While the inconvenience of a party will not normally be considered (Ray v Beauter, 90 A.D.2d 988), an exception arises when the inconvenience relates to a partys health (see, e.g., Windhurst v Town of Thompson, supra; Foley v Phelps, 257 App Div 896). Here, it is clear that an enormous hardship would be imposed on the paraplegic plaintiff -- who requires daily treatment and care -- if she is compelled to travel to and reside in a far-off county during trial. Furthermore, the convenience of the treating physicians is a strong factor in favor of retaining venue in Rockland County (see Kucich v Leibowitz, 68 A.D.2d 1002; Hilgers v Hyde, 6 A.D.2d 963). The plaintiffs doctors practice in New York City [94 A.D.2d 792 Page 793]
 "Donna Messinger v. Alfred Festa" by Supreme Court of New York # eBook PDF Kindle ePub Free){kind=link}