Saxe v. OB/GYN Associates, P. C. 86 N.Y.2d 820, 633 N.Y.S.2d 471, 657 N.E.2d 492

86 N.Y.2d 820 • 633 N.Y.S.2d 471 • 657 N.E.2d 492

[657 NE2d 492, 633 NYS2d 471]

Elana J. Saxe, an Infant, by Her Parents and Natural Guardians, Phyllis K. Saxe et al., Respondents, v OB/GYN Associates, P. C., et al., Appellants.

Decided September 21, 1995

*821APPEARANCES OF COUNSEL

Martin, Clearwater & Bell, New York City (Patricia D'Alvia and Barbara D. Goldberg of counsel), for OB/GYN Associates, P. C., and others, appellants.

Heidell, Pittoni, Murphy & Bach, P. C, New York City (Mitchell D. Frankel of counsel), for Mirta Veber, appellant.

Kramer, Dillof, Tessel, Duffy & Moore, New York City (Norman Bard of counsel), for respondents.

*822OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiffs’ motion to transfer the action to Kings County denied, and the matter remitted to Supreme Court, New York County, for further proceedings not inconsistent with this memorandum. The certified question is answered in the negative.

Where one of the parties to the action commenced in New York County is a Supreme Court Justice in that jurisdiction, the Appellate Division did not abuse its discretion in transferring the action out of New York County pursuant to CPLR 510 (2), to avoid concerns about the appearance of impropriety (see, Rothwax v Spicehandler, 161 AD2d 184; De Luca v CBS, Inc., 105 AD2d 770).

In light of the express legislative preference for actions being tried in proper counties (see, CPLR 502, 503, 510 [1]; 511 [b]), however, a court must, whenever possible, transfer an action under CPLR 510 to a county in which the action properly could have been commenced. Kings County, requested by plaintiffs, is an improper county for commencing the action under CPLR 503 (a). Therefore, the court should have transferred the action to Westchester County, the county requested by defendants, or one of the other proper alternative forums in which various defendants resided at the commencement of this action.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

Saxe v. OB/GYN Associates, P. C.
86 N.Y.2d 820 • 633 N.Y.S.2d 471 • 657 N.E.2d 492

Case Details

Name
Saxe v. OB/GYN Associates, P. C.
Decision Date
Sep 21, 1995
Citations

86 N.Y.2d 820

633 N.Y.S.2d 471

657 N.E.2d 492

Jurisdiction
New York
Court
New York Court of Appeals

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