FILED: TOMPKINS COUNTY CLERK 06/01/ :38 PM

Transcription

1 FILED: TOMPKINS COUNTY CLERK 06/01/016 0:8 PM INDEX NO. EF NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 05/7/016 CI Index # : EF At a Motion Term of the Supreme Court held in and for the County of Erie, State of New York on the 5 th day of May, 016 Presiding: Hon. John A. Michalek, J.S.c. STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE PATRICIA J. SCHENK, Individually and as Administratrix of the Estate of CRAIG A. SCHENK, Deceased, v. Plaintiff, Index No /015 DEERE & COMPANY, C. CHARLES BENSON (a/k/a C. Charles Benson, Jr.), CAZENOVIA EQUIPMENT COMPANY, INC., O'HARA MACHINERY, INC., MARTY'S SERVICE CENTER, INC., THE BENSON FAMILY PROPERTY INCOME ONLY TRUST, CHANDLER P. BENSON, Trustee of The Benson Family Property Income Only Trust, ANDRA P. BENSON, Trustee of The Benson Family Property Income Only Trust, C. CHARLES BENSON, (a/k/a C. Charles Benson, Jr.) Trustee of The Benson Family Property Income Only Trust, and REBECCA K. SEAR, Trustee of The Benson Family Property Income Only Trust, Defendants. ORDER Defendant Deere & Company ("Deere") having moved for an Order pursuant to CPLR S 510() to change the venue of this matter from Erie County to Tompkins County; and Defendant C. Charles Benson (a/k/a C. Charles Benson, Jr.) having cross-moved for an Order to change the venue of this matter from Erie County to Tompkins County; 1 of 7

2 NOW, upon the reading and filing of a Notice of Motion dated March 11, 016, and the Affirmation of Karalyn M. Rossi, Esq. dated March 11, 016, with Exhibits "A" through "H," which included the Affidavits of Brad Johnson, sworn to February 9, 0 I6; George Tamborelle, sworn to February 9,016; Howard Silcoff, M.D., sworn to March 10,016, with Exhibit "A"; and Scott Purcell, sworn to February 6, 016, with Exhibit "A," all submitted in support of Deere's motion; the Affirmation of Pauline C. Will, Esq. dated March 18,016, submitted on behalf of Defendant Cazenovia Equipment Co., Inc. and in support of Deere's motion; the Affirmation of Scott Michael Duquin, Esq. dated March 1, 016, with Exhibits "A" through "P," submitted on behalf of Plaintiff and in opposition to Deere's motion; a Notice of Cross-Motion dated April 6,016, and the Affidavit of Brian P. Fitzgerald, Esq., sworn to April 6,016, submitted in support of Defendant C. Charles Benson's (a/k/a C. Charles Benson, Jr.) cross-motion and in support of Deere's motion; the Affirmation of Thomas P. Cunningham, Esq. dated April 6, 016, submitted on behalf of Defendants The Benson Family Property Income Only Trust, Chandler P. Benson, Trustee of The Benson Family Property Income Only Trust, Andra P. Benson, Trustee of The Benson Family Property Income Only Trust, C. Charles Benson, (a/k/a C. Charles Benson, Jr.,) Trustee of The Benson Family Property Income Only Trust, and Rebecca K. Sear, Trustee of The Benson Family Property Income Only Trust and in support of Deere's motion; the Affirmation of Philip C. Barth III, Esq. dated April 1,016, submitted on behalf of Defendant O'Hara Machinery, Inc. and in support of Deere's motion; and the Reply Affirmation of Karalyn M. Rossi, Esq. dated April 18,016, with Exhibits "A" through "0" submitted in further support of Deere's motion; and This Court having heard counsel's arguments on said motions on May 5,016, with Hodgson Russ LLP (Karalyn M. Rossi, Esq., of counsel) appearing for Deere; Brian P. of 7

3 Fitzgerald, P.c. (Brian P. Fitzgerald, Esq., of counsel) appearing for C. Charles Benson (a/k/a C. Charles Benson, Jr.); and Hogan Willig PLLC (Scott Michael Duquin, Esq., of counsel) appearing for Plaintiff; and this Court having duly deliberated and decided, a copy of which is attached as Exhibit A and incorporated herein, it is hereby ORDERED, that Deere & Company's motion seeking a change of venue in this matter from Erie County to Tompkins County is GRANTED; and it is further ORDERED, that C. Charles Benson's (alk/a C. Charles Benson, Jr.) crossmotion seeking a change of venue in this matter from Erie County to Tompkins County is GRANTED. GRANTED: ENTER: f Litigation 1077vl of 7

4 STATE of NEW YORK SUPREME COURT COUNTY of ERIE PART CRAIG A. SCHENK, Plaintiff, -vs- DEERE & COMPANY, et al. Index #811508/015E Decision Defendants Delaware Avenue th Floor Chambers Buffalo, New York 10 May 5, 016 B e for e HONORABLE JOHN A. MICHALEK, Supreme Court Justice. A P pea ran c e s : SCOTT M. DUQUIN, ESQ., Appearing for the Plaintiff. KARALYN M. ROSSI, ESQ., Appearing for Deere & Company. BRIAN P. FITZGERALD, ESQ., Appearing for C. Charles Benson. PAULINE C. WILL, ESQ., Appearing for Cazenovia Equipment. PHILIP C. BARTH, III, ESQ., Appearing for O'Hara Machinery. THOMAS P. CUNNINGHAM, ESQ., Appearing for Benson Family Trust. Sandra A. Lelito, Supreme Court Reporter. of 7

5 ,. " (Arguments on record - not transcribed.) THE COURT: Okay. That's all right. I think we've already been on the record. If we're not, we are now. Only part I need with any proposed order is my part, but thanks for the submissions. And, again, we got requests for an order by Deere & Company for granting a change of venue from Erie County to Tompkins County. And from the defendant, C. Charles Benson for an order granting a change of venue from Erie County to Tompkins County. Court's going to grant venue change. Court's rationale is that generally a motion for a change of venue is addressed to the sound discretion of the Court. Citing McLaughlin vs. City of Buffalo, 59 ADd 101, Fourth Department, This Court finds that movants have sufficiently established that it is inconvenient for multiple non-party material witnesses to travel to Erie County to testify. Citing Costello vs Forbes, 9 ADd 856, Fourth Department, 00. Excuse my pronunciation, I've had bad dental work and it's driving me nuts. Furthermore, it's been held that the convenience of public employees should be given more than ordinary consideration. Citing Kennedy vs. C.F. Galleria at White Plains, L.P., ADd, First Department, of 7

6 In this instant action, several of the non-party material witnesses are public employees. Additionally, the general rule is that tort actions should ordinarily be tried where the cause of action arose. Citing, again, McLaughlin vs. city of Buffalo. In the case at bar, the cause of action arose in Tompkins County. Another factor militating in favor of a change in venue to Tompkins County is that venue is currently based on plaintiff's residence in Erie County, though she moved to Erie County approximately one year following the happening of the accident in Tompkins County. Other than this factor, plaintiff has failed to demonstrate any other consideration that would favor Erie County as the proper venue of this action. Citing Seguin vs. Landfried, 96 ADd 1, once more, Fourth Department, 01. Plaintiff has opposed this motion, and in her motion papers has argued in favor of maintaining venue in Erie County. However, plaintiff has not made an application for affirmative relief and the papers submitted are not sufficient to constitute a cross-motion. Citing Bauer vs. Facilities Development Corporation, 10 ADd 99, Fourth Department, 199. However, even had plaintiff made such an affirmative application in an effort to maintain Erie 6 of 7

7 County venue, she has not produced admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in Tompkins County. Rather, only conclusory statements as to the alleged inability of the plaintiff to obtain an impartial trial in Tompkins County have been offered. Citing Matter of Michiel, 8 ADd 687, Second Department, 008. Finally, the Court notes that all active defendants have either affirmatively moved for the change of venue or submitted papers joining in with those who have so moved. I -- I didn't give you guys a chance to talk, but that's okay. 1 (Proceeding concluded.) 1 * * * I hereby certify that the foregoing is a true and accurate transcript of the official court reporter's minutes of the proceedings and testimony in the matter of Schenk versus Deere & Company. ~0~ Sandra A. Lelito, Supreme Court Reporter. 5 7 of 7