Costello v. Forbes

—Appeals from an order of Supreme Court, Erie County (Howe, J.), entered May 16, 2001, which denied defendants’ motions seeking to change venue and granted plaintiffs cross motion seeking to dismiss the affirmative defenses of improper venue.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motions are granted and the cross motion is denied.

Memorandum: Supreme Court improvidently exercised its discretion in denying defendants’ motions pursuant to CPLR 510 (3) seeking to change the venue of this medical malpractice/ wrongful death action from Erie County to Monroe County and in granting plaintiffs cross motion seeking to dismiss the affirmative defenses of improper venue. Although plaintiff, as administratrix of decedent’s estate, resides in Erie County, defendants established that it is inconvenient for three *857nonparty material witnesses who reside in Monroe County to travel to Erie County to testify. Those witnesses are nurses formerly employed by defendant Genesee Hospital, which has since closed. In addition to providing their names and addresses, defendants provided affidavits of those witnesses stating that each is willing to testify, setting forth the facts to which those witnesses would be expected to testify, and explaining why it would be difficult to travel to Erie County to testify (see O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173). Plaintiffs two nonparty material witnesses are decedent’s mother and decedent’s husband, neither of whom resides in Erie County; decedent’s mother resides on Long Island and decedent’s husband resides in Wayne County. In addition, neither of those witnesses stated why it would be more convenient for the action to be tried in Erie County. Furthermore, the cause of action arose in Monroe County (see id. at 174). We therefore conclude that the court erred in denying defendants’ motions and granting plaintiffs cross motion. Present—Green, J.P., Hurlbutt, Scudder and Lawton, JJ.