FILED: TOMPKINS COUNTY CLERK 03/11/ :42 PM

Transcription

1 FILED: TOMPKINS COUNTY CLERK 03/11/ :42 PM INDEX NO. EF NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 03/11/2016 Index # : EF STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE PATRICIA J. SCHENK, Individually and as Administratrix of the Estate of CRAIG A. SCHENK, Deceased, Plaintiff, v. Index No /2015 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. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO TRANSFER PLACE OF TRIAL HODGSON RUSS LLP Attorneys for Deere & Company Ryan J. Lucinski, Esq. Karalyn M. Rossi, Esq. The Guaranty Building 140 Pearl Street, Suite 100 Buffalo, New York Telephone: of 15

2 TABLE OF CONTENTS PRELIMINARY STATEMENT...1 STATEMENT OF FACTS...1 ARGUMENT...1 POINT I. POINT II. POINT III. POINT IV. THE CONVENIENCE OF MATERIAL WITNESSES HEAVILY FAVORS TOMPKINS COUNTY AS THE PLACE OF TRIAL...2 THE CONVENIENCE OF PARAMEDICS, EMERGENCY RESPONDERS, AND STATE OFFICIALS IS OF PARAMOUNT IMPORTANCE...4 ERIE COUNTY HAS NO CONNECTION WITH THIS CASE OTHER THAN PLAINTIFF S POST-ACCIDENT ADDRESS CHANGE...8 THE COMPLAINT ITSELF DEMONSTRATES THAT THIS CASE SHOULD BE TRIED IN TOMPKINS COUNTY...10 CONCLUSION of 15

3 TABLE OF AUTHORITIES Page(s) State Cases Bernstein v. McKane, 3 A.D.2d 764 (2d Dep t 1957)...10 Carroll v. Am. Honda Motor Co., Inc., 196 A.D.2d 757 (1st Dep t 1993)...4, 5 Chimirri v. Evergreen Am. Corp., 211 A.D.2d 743 (2d Dep t 1995)...2, 5 Costello v. Forbes, 294 A.D.2d 856 (4th Dep t 2002)...4 Gangi v. Daimler Chrysler Corp., 14 A.D.3d 482 (2d Dep t 2005)...2 Geraghty v. Agway, Inc., 289 A.D.2d 1016, 734 N.Y.S.2d 784 (4th Dep t 2001)...10 Hoogland v. Transport Expressway, Inc., 24 A.D.3d 191 (1st Dep t 2005)...4, 6 Jackson v. Congregational Church of Patchogue, 256 A.D.2d 71 (1st Dep t 1998)...8, 9 Kennedy v. C.F. Galleria at White Plains, L.P., 2 A.D.3d 222 (1st Dep t 2003)...5, 6 Koschak v. Gates Const. Corp., 225 A.D.2d 315 (1st Dep t 1996)...9 McLaughlin v. City of Buffalo, 259 A.D.2d 1014 (4th Dep t 1999)...8, 10 Prof l Vehicle Leasing, Ltd. v. Continuing Developmental Servs., Inc., 275 A.D.2d 313 (2d Dep t 2000)...2, 4, 10 Quick Constr. Corp. v. Loribeth Theatres, Inc., 186 A.D.2d 546 (2d Dep t 1992)...8 Ray v. Beauter, 90 A.D.2d 988, 456 N.Y.S.2d 593 (4th Dep t 1982)...10 i 3 of 15

4 Risoli v. Long Island Lighting Co., 138 A.D.2d 316 (1st Dep t 1988)...9 Seabrook v. Good Samaritan Hosp., 58 A.D.2d 538 (1st Dep t 1977)...10 Smilow v. General Motors Corp., 168 A.D.2d 237 (1st Dep t 1990)...4 Rules CPLR 510(3)...1 Other Authorities Weinstein et al., NEW YORK CIVIL PRACTICE ii 4 of 15

5 PRELIMINARY STATEMENT This case should be transferred to Tompkins County. The material witnesses live and work in and around Tompkins County, and they will be greatly inconvenienced by being required to travel to Erie County for the trial of this action. Moreover, plaintiff s causes of action arose exclusively in Tompkins County. The only connection to Erie County is plaintiff s post-accident change of address from Tompkins County (where plaintiff resided at the time of the accident) to Erie County (plaintiff s residence at the time of filing suit). Therefore, this Court should grant Deere & Company s ( Deere ) motion to change venue. STATEMENT OF FACTS The relevant procedural and factual background is set forth in the accompanying affirmation of Karalyn M. Rossi, with exhibits A through H, dated March 11, 2016 ( Rossi Aff. ), including the Affidavit of Brad Johnson, sworn to February 29, 2016 ( Johnson Aff. ), Affidavit of George Tamborelle, sworn to February 29, 2016 ( Tamborelle Aff. ), Affidavit of Howard Silcoff, M.D., with Exhibit A, sworn to March 10, 2016 ( Silcoff Aff. ), and Affidavit of Scott Purcell, with Exhibit A, sworn to February 26, 2016 ( Purcell Aff. ). The facts will not be repeated herein except for purposes of argument. ARGUMENT This motion for change of venue is governed by CPLR 510(3), which provides that the court, upon motion, may change the place of trial of an action where... the convenience of material witnesses and the ends of justice will be promoted by the change. The factors a court should consider in determining such motion include: (1) the convenience of the witnesses; (2) the place where the cause of action arose; (3) the opportunity for an early trial; (4) 5 of 15

6 the locations of records; and (5) any other factor appealing to the interests of justice. 1 Here, an evaluation of these factors clearly demonstrate that this action should be tried in Tompkins County. POINT I. THE CONVENIENCE OF MATERIAL WITNESSES HEAVILY FAVORS TOMPKINS COUNTY AS THE PLACE OF TRIAL witnesses must show: Under New York law, a party moving for change of venue for the convenience of 1. the identity and address of the proposed witnesses; 2. the facts to which the witnesses will testify at trial; 3. that the witnesses have been contacted and are available to testify; and 4. that the witnesses would be greatly inconvenienced if the venue of the action was not changed. 2 Through case investigation, interviews, and paper discovery, at least twenty-one nonparty witnesses have been identified as having material information necessary to the trial of this action. 3 Of these twenty-one, our office has contacted the following witnesses: Paramedic George Tamborelle 4 Paramedic Brad Johnson 5 1 Weinstein et al., NEW YORK CIVIL PRACTICE Gangi v. Daimler Chrysler Corp., 14 A.D.3d 482, 482 (2d Dep t 2005); Chimirri v. Evergreen Am. Corp., 211 A.D.2d 743, 744 (2d Dep t 1995); Prof l Vehicle Leasing, Ltd. v. Continuing Developmental Servs., Inc., 275 A.D.2d 313, 314 (2d Dep t 2000). 3 Rossi Aff. 18, 20, 22, 24, Rossi Aff. Ex. D (Tamborelle Aff.). 5 Rossi Aff. Ex. E (Johnson Aff.). 2 6 of 15

7 Chief Medical Examiner Howard Silcoff, M.D. 6 Fire Chief Scott Purcell 7 Each of the above listed witnesses has signed an affidavit attesting to his willingness to testify and the great inconvenience he would face if the trial were to proceed in Erie County. As set forth in the supporting affidavits of George Tamborelle, Brad Johnson, Howard Silcoff, M.D., and Scott Purcell, and the affirmation of Karalyn M. Rossi, Esq., Deere & Company has made the requisite showing to support a change of venue to Tompkins County. Specifically, Deere has provided: (1) the identities and addresses of proposed witnesses; (2) the facts to which the witnesses will testify at trial; (3) that the witnesses have been contacted and are available to testify; and (4) that the witnesses would be greatly inconvenienced if the venue of the action was not changed. 8 Deere has also shown that such testimony is material to the defense of this action. George Tamborelle, Brad Johnson, and Scott Purcell will each testify about their own emergency response actions as some of the first responders to arrive at the scene of the accident, including the conditions observed and the removal of decedent s body from the scene. They also have knowledge concerning the actions of others at the scene in connection with this incident. And Howard Silcoff, M.D., will testify regarding the cause of decedent s death, which 6 Rossi Aff. Ex. F (Silcoff Aff.). 7 Rossi Aff. Ex. G (Purcell Aff.). 8 See Rossi Aff. Exs. D (Tamborelle Aff.); E (Johnson Aff.); F (Silcoff Aff.); G (Purcell Aff.). 3 7 of 15

8 is critical evidence regarding decedent s conscious pain and suffering, if any. The testimony of each witness is material evidence. Moreover, all affiants, as constrained by their demanding occupations (explained more fully below), will be greatly inconvenienced by having to travel upwards of over three hours (one-way) to Erie County to testify at trial, as opposed to traveling only minutes from their respective places of work and/or residence to the Tompkins County courthouse. Accordingly, the convenience of the above material witnesses strongly supports a change of venue to Tompkins County. 9 POINT II. THE CONVENIENCE OF PARAMEDICS, EMERGENCY RESPONDERS, AND STATE OFFICIALS IS OF PARAMOUNT IMPORTANCE In addition to the convenience of material witnesses, the convenience of paramedics and emergency responders such as George Tamborelle, Brad Johnson, and Scott Purcell is of paramount importance. New York courts have made it clear that the convenience of paramedics and other emergency personnel should be given priority in a discretionary motion to change venue. 10 In 9 See Hoogland v. Transport Expressway, Inc., 24 A.D.3d 191, 191 (1st Dep t 2005) (affirming grant of motion to change venue from New York County to Orange County where defendants made the requisite showing that retention of the action in New York County would inconvenience nonparty material witnesses, including fire, police, and emergency services personnel); Costello v. Forbes, 294 A.D.2d 856, (4th Dep t 2002) (reversing denial of defendants motion to change venue from Erie to Monroe County because defendants established that three nonparty material witnesses would be willing to testify and greatly inconvenienced by the travel to Erie County); Carroll v. Am. Honda Motor Co., Inc., 196 A.D.2d 757 (1st Dep t 1993) (affirming grant of defendants motion to change venue from New York County to Westchester County where paramedic who treated plaintiff at the scene of the accident would be inconvenienced otherwise); Smilow v. General Motors Corp., 168 A.D.2d 237 (1st Dep t 1990) (granting change of venue from New York County to Sullivan County where defendants identified several witnesses, including emergency personnel, who resided in or near Sullivan County the place of the subject accident). 10 See e.g., Prof l Vehicle Leasing, Ltd., 275 A.D.2d at 314 ( The convenience of State Officials is of paramount importance because they should not be kept from their duties unnecessarily. ); see also 4 8 of 15

9 Carroll v. American Honda Motor Co., 11 the First Department affirmed the trial court s grant of the defendants motion to change venue from New York County to Westchester County. The primary reason for doing so was based on the convenience of the paramedic who treated plaintiff at the scene of the accident, and the fire and police personnel who responded to the accident, all of whom were Westchester County employees and residents. 12 Moreover, the Carroll court held that the paramedic s and fire and police personnel s convenience was properly given priority over plaintiff s family members. 13 This case is no different. Similarly, in Kennedy v. C.F. Galleria at White Plains, L.P., 14 the First Department held that the trial court s denial of the venue change was improvident in light of the movants demonstration that the convenience of material nonparty witnesses would be better served by the change. 15 The court explained: Defendants[] submitted the affidavits of three... police officers, who affirmed that they had responded to the scene of the [incident] and prepared reports of the incident based on their investigations. The police reports show that the testimony of these officers would be material, since they were among the first officers to respond, secure the scene, and interview witnesses.... The officers also affirmed that they would be inconvenienced by having to travel to Bronx County during their normal business hours... and that attending a Bronx trial would cause them to be absent from their Chimirri, 211 A.D.2d at 744 ( The convenience of State and local government official is of paramount importance because they should not be kept from their duties unnecessarily. ) A.D.2d 757 (1st Dep t 1993). 12 Id. at Id A.D.3d 222 (1st Dep t 2003). 15 Id. at of 15

10 police duties for a full day. The convenience of public employees... at trial should be given more than ordinary consideration. 16 And in Hoogland v. Transport Expressway, Inc., 17 the First Department affirmed the defendant s motion to change venue based, in relevant part, on the affidavits of two paramedics who affirmed that they had responded to the scene of the multi-car accident and prepared reports concerning their actions at the scene. 18 The paramedics further affirmed that they would be inconvenienced by having to take a day off from their public service jobs to travel to the chosen venue of New York County from Orange County where they worked. The Hoogland court found it proper to consider the convenience of these paramedics in granting the defendant s motion, as their testimony about the injuries sustained was material. 19 Here, George Tamborelle, Brad Johnson, and Scott Purcell were among the first emergency responders to respond to the scene of decedent s accident. 20 Mr. Johnson and Mr. Purcell each generated reports in connection with this incident. 21 Each witness was contacted and interviewed by defense counsel. Mr. Tamborelle and Mr. Purcell work and live in Tompkins County. Brad Johnson works in and lives minutes from Tompkins County. Each witness has stated that, based on his work duties and responsibilities, he would be greatly inconvenienced if venue were not changed to Tompkins County. 16 Id. (emphasis added) A.D.3d 191 (1st Dep t 2005). 18 Id. at Id. at See Rossi Aff. Exs. D (Tamborelle Aff.); E (Johnson Aff.); G (Purcell Aff.). 21 Id. Exs. E (Johnson Aff.); G (Purcell Aff.) of 15

11 For example, George Tamborelle is a paramedic and supervisor at Bang s Ambulance. He works extremely long hours, including 24-hour shifts. Mr. Tamborelle is also Fire Chief of the Cayuga Heights Fire Department, a volunteer position that requires approximately hours per week. In that capacity, Mr. Tamborelle supervises a crew of approximately 50 volunteer firefighters. Similarly, Brad Johnson is a full-time paramedic with Bang s Ambulance, working Monday through Friday, eight hours each day. He is also a volunteer firefighter and Officer at the Valois Logan Hector Fire Department, which depends on his on-call accessibility. And Scott Purcell is Fire Chief of the Lansing Fire Department, a volunteer position that requires approximately hours per week. Mr. Purcell also works full time (40 hours per week) for the Town of Lansing Highway Department. Given that these critical witnesses would be greatly inconvenienced by the Erie County venue, this Court should give these witnesses special consideration and change the place of trial to Tompkins County. Moreover, Dr. Silcoff would also be greatly inconvenienced if venue remained in Erie County. Dr. Silcoff is the Chief Medical Examiner of Tompkins County, which depends on his on-call accessibility. He is on call about 85% of the time. He cannot be a short drive away from Tompkins County without coverage. Whether Dr. Silcoff secures coverage on any given day depends on the schedules of his two deputies. In addition to his duties as Chief Medical Examiner, Dr. Silcoff is a Board Certified physician practicing Family Medicine at Dryden Family Medicine located in Tompkins County. He works at Dryden Family Medicine 4-5 full days per week of 15

12 POINT III. ERIE COUNTY HAS NO CONNECTION WITH THIS CASE OTHER THAN PLAINTIFF S POST-ACCIDENT ADDRESS CHANGE Aside from plaintiff s alleged change of address before commencing this action, Erie County has no nexus to this case. At the time of the accident September 29, 2014 plaintiff resided in Tompkins County. 22 By the time she filed the initial Summons and Complaint less than 1 year later (September 28, 2015), plaintiff allegedly resided in Erie County. 23 Plaintiff s residence is the sole basis for venue in Erie County. This is a situation in which Erie County had nothing to do with the case and would otherwise not qualify as a proper venue. New York courts have repeatedly rejected the use of a single party s residence as the sole basis for maintaining venue where the complaint bore no other relationship to the chosen venue. 24 For example, in Jackson v. Congregational Church of Patchogue, 25 the First Department reversed the trial court and granted defendant s motion to change venue from New York County to Suffolk County. There, plaintiff commenced suit against defendant Church in New York County where he claimed to have taken up residence 30 days before commencing that action. Defendant commenced a second action in Suffolk County and moved to consolidate the 22 Rossi Aff. Ex. B (Amended Complaint) Id See, e.g., McLaughlin v. City of Buffalo, 259 A.D.2d 1014, 1015 (4th Dep t 1999) (changing venue from Monroe County plaintiff s residence to Erie County the place of the accident noting that the paramount consideration in determining venue is the location where the cause of action arose ); see also Jackson v. Congregational Church of Patchogue, 256 A.D.2d 71, 72 (1st Dep t 1998) (changing venue from New York County to Suffolk County where New York County had no connection with action except for plaintiff s residence); Quick Constr. Corp. v. Loribeth Theatres, Inc., 186 A.D.2d 546, 547 (2d Dep t 1992) (reversing trial court s denial of motion to change venue from Nassau County to Orange County where the only nexus to Nassau County is plaintiff s business office ) A.D.2d 71 (1st Dep t 1998) of 15

13 actions and change the venue of the New York County action to Suffolk County. The First Department held that the trial court s denial of the venue change was an improvident exercise of discretion, explaining: Aside from plaintiff s purported change of residence on the eve of commencing the action, New York County has no connection with this action. The Church and congregation are located in Suffolk County. All witnesses except plaintiff live or work in Suffolk County... The convenience of witnesses and the ends of justice are much more clearly served by changing venue to Suffolk County. 26 Moreover, litigating this case in Tompkins County, the situs of the accident and plaintiff s former residence, will not inconvenience either side. 27 And in any event, the convenience of the parties [i.e., plaintiff] and their employees is irrelevant to venue determinations. 28 Although Erie County is technically a proper venue, the ends of justice would be better served if the place of trial was changed to Tompkins County. The Court should reject the use of plaintiff s current residence as the basis for maintaining venue, as it bears no other relationship to the instant action. 26 Id. at See e.g., Koschak v. Gates Const. Corp., 225 A.D.2d 315, 316 (1st Dep t 1996) (finding that litigation of this matter in Richmond County, the situs of the accident and plaintiffs former residence, will not represent an inconvenience to either side ). 28 Risoli v. Long Island Lighting Co., 138 A.D.2d 316, 318 (1st Dep t 1988) of 15

14 POINT IV. THE COMPLAINT ITSELF DEMONSTRATES THAT THIS CASE SHOULD BE TRIED IN TOMPKINS COUNTY An evaluation of other relevant factors in this case demonstrates that the ends of justice will be promoted by a transfer of this case to Tompkins County. As an initial matter, the causes of action alleged by plaintiff arose in Tompkins County. 29 Where a plaintiff alleges a tort claim, the action should be tried where the cause of action arose. 30 Plaintiff s causes of action sound in tort. Since Tompkins County is where the alleged causes of action arose, Tompkins County is where this case should be tried. Moreover, as is the case here, [i]f... the county with the preponderance of the witnesses is the county in which the cause of action arose, venue should be therein placed. 31 Considering all of the relevant factors, this Court should change venue to Tompkins County, where there is a preponderance of witnesses, and where the convenience of those witnesses would be best served. 32 In addition, a rural county, [such as Tompkins County,] where calendars are not congested, is to be preferred to an urban county, [such as Erie County,] where conditions are otherwise See generally Rossi Aff. Ex. B (Amended Complaint). 30 McLaughlin, 259 A.D.2d at 1015 (4th Dep t 1999); see also Geraghty v. Agway, Inc., 289 A.D.2d 1016, 734 N.Y.S.2d 784 (4th Dep t 2001) ( [A]bsent cogent reasons to direct otherwise, the trial should be held [where the accident occurred]. ); Ray v. Beauter, 90 A.D.2d 988, 456 N.Y.S.2d 593 (4th Dep t 1982) ( Cases should ordinarily be tried where the cause of action arose. ). 31 Seabrook v. Good Samaritan Hosp., 58 A.D.2d 538 (1st Dep t 1977). 32 See e.g., Prof l Vehicle Leasing, Ltd., 275 A.D.2d at See Bernstein v. McKane, 3 A.D.2d 764, 765 (2d Dep t 1957) of 15

15 The genesis of this action is in Tompkins County, and the ends of justice will be promoted only if it is transferred there. CONCLUSION For the foregoing reasons, Deere respectfully requests that this Court issue an Order granting a change of venue from Erie County to Tompkins County, and for such other and further relief as this Court deems just and proper. Dated: Buffalo, New York March 11, 2016 HODGSON RUSS LLP Attorneys for Deere & Company By: s/karalyn M. Rossi Ryan J. Lucinski Karalyn M. Rossi The Guaranty Building 140 Pearl Street, Suite 100 Buffalo, New York Telephone: Litigation v of 15