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Rodriquez v Metropolitan Transp. Auth. 2013 NY Slip Op 30775(U) April 11, 2013 Supreme Court, New York County Docket Number: 114377/2011 Judge: Arlene P. Bluth Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
H
PRESENT:
Justice

PART

22,

Index Number : 114377/2011 RODRIGUEZ, VICTOR
vs

INDEX NO.
MOTION DATE MOTION SEQ. NO.

METROPOLITAN TRANSPORTATION
Sequence Number : 001
CONSOLIDATIONIJOINT TRIAL

-

The following papers, numbered Ito
Notice of MotionlOrder to Show Cause Answering Affidavits Replying Affidavits

'&,were read on this motion tolfor

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CV'1L.h dL7

- Affidavits - Exhibits

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- Exhibits

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Upon the foregoing papers, it is ordered that this motion is

I CHECK ONE: . 2.
3.

NON-FINAL DiJ&iTiON ..................................................................... @ CASE DISPOSED OTHER GRANTED IN PART 0DENIED CHECK AS APPROPRIATE: .......................... .MOTION IS:T$;GRANTED SUBMIT ORDER CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER DO NOT POST 0FlDUCl IRY APPOINTMENT 0REFERENCE

KM. ARLENE P. BLU

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SUPREME COURT OF THE STATE OF NY COUNTY OF NEW YORK: PART 22
Victor Rodriguez,
Plaintiff,

Index No.: 11 4377/11

Motion Seq. 001

-against-

CISION/ORDER
ARLENE P. BLUTH, JSC

Metropolitan Transportation Authority, MTA Bus Company and Alex A. Brown,

Defendants" motion for an order pursuant to
trial and discovery the above-captioned action with

(a) "consolidating for joint

er action pending in Supreme

Court, Bronx County entitled Mario Acevedo, et. Al., v Metropolitan Transit Authority, et.
al. [which involves the same motor vehicle]" is granted to the extent that the two cases are

consolidated for all purposes and shall be tried in Bronx County. Although the notice of motion does not indicate where defendants desire the consolidated action be tried2;both the notice of motion and the "wherefore" clause in the supporting affirmation do, however, seek "such other and further and different relief as
to this Court may seed just and proper" and thus authorizes this Court to do what it

determines is appropriate even if the movant did not specifically ask for it.

Although the answer annexed to the motion is on behalf of only MTA, this motion is specifically made 011 behalf of all defendants (MTA, MTA Bus and defendant driver Alex A. Brown). Therefore, "defendants" as set forth in this decision on the motion refers to all moving defendants, which are all defendants in the caption. 2Buried in paragraph 12 of defendants' attorney's affirmation in support, counsel indicates that venue of the two cases should be placed in New York County.

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Plaintiff in the New York County action has not submitted any papers on this motion, but plaintiff in the Bronx County action has Submitted papers indicating that Bronx County is the proper venue for the consolidated action. On the summons in this New York County action, plaintiffs counsel based venue upon "place of accident"; this, of course, was in error. While place of accident might be

an argument to change venue to due to a more convenient forum (see CPLR 5 10(3)), it is
not a basis to initially determine venue. Initially, venue should be where a party resides

(CPLR 503); here, right on the face of the summons, plaintiff Rodriguez lists his address
as in the Bronx. As he initially chose the venue, even improperly, he cannot now oppose

any request to stay here. Whether for that reason or another, Rodriguez, the plaintiff in the instant New York County action, did not submit any opposition to this consolidation motion. However, plaintiffs in the Bronx County action (Mario and Idell Acevedo) have submitted partial opposition to the motion. While these plaintiffs concede that the two cases involve the same motor vehicle accident and should be consolidated (opp., para. 6 ) , they assert that because all plaintiffs and even defendant bus driver live in Bronx County,

all treatment was rendered in Bronx County, and the three eyewitnesses reside in Bronx
County, the venue of the consolidated action should be placed in Bronx County. Significantly, movant fails to subinit any reply to this powerful partial opposition. This Court agrees that the consolidated action belongs in Bronx County. Even

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though this New York County action was coininenced shortly (four weeks) before the Bronx County case, the fact is that the initial basis of venue in the New York County case was in error, and besides, in the exercise of discretion, the Court finds that the special circumstances exist (plaintiffs and eyewitnesses and defendant bus driver all reside in Bronx County, all medical treatment rendered in Bronx County) to warrant deviation

from the general rule placing venue in the county where the first action was commenced.
Therefore, the Court directs that venue be placed in Bronx County. See Glynn v United
House of Pruyer for All People, 242 AD2d 494,663 NYS2d 8 19 (1st Dept 1997)) citing TT

Enterprises v Grulnick, 127 AD2d 65 1, 51 1 NYS2d 878 (2d Dept 1987). This, in addition

to movant giving this Court authority to order "such other and further and different relief as to this Court may seem just and proper" in both the notice of motion and the "wherefore" clause of the moving papers, the Court finds that venue of the consolidated action is properly placed in Bronx County. Accordingly, it is hereby

ORDERED that defendants' motion is granted to the extent that the cases are
consolidated and the Clerk of this Court shall transfer the papers on file under Index No. 114377111 to the Clerk of the Court, Bronx County upon service of a certified copy of this order and payment of the appropriate fee, if any, so that it shall be consolidated with
Mario Acevedo, et. al., v Metropolitan Transit Authority, el. al., Supreme Court, Bronx

County, Index No, 300645/12, and it is further

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ORDERED that within 30 days from entry of this order, counsel for the rnovants
or counsel for any of the plaintiffs shall serve a copy of this order with notice of entry

upon the appropriate court clerk to effectuate said transfer to Bronx County, and it is further

ORDEMD that the consolidated action shall bear the following caption:

Mario Acevedo, Idell Acevedo and Victor Rodriguez,

Plaintiffs,

Index No. 300645112

-againstMetropolitan Transit Authority, New York City Transit Authority, MTA Bus Company and Alex A. Brown,

and it is further

ORDERED that the pleadings in the actions hereby consolidated shall stand as the
pleadings in the consolidated action; and it is further

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ORDERED that within 30 days from entry of this order, counsel for the movants
or counsel for any of the plaintiffs shall serve a copy of this order with notice of entry upon the Clerk of the Trial Support Office (Room 158) and the County Clerk (Room

141B), who shall mark their records accordingly and it is Eurther
This is the Decision and Order of the Court.

Dated: April 11,2013 New York, New York

HON. ARLENE P. BLUTH, JSC

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