Simon v. Usher

17 N.Y.3d 625, 958 N.E.2d 540, 934 N.Y.S.2d 362 (2011) · Court of Appeals of New York · October 20, 2011 · No. No. 172

Summary

The New York Court of Appeals held that the five-day extension under CPLR 2103 (b) (2) applies to the 15-day period in CPLR 511 (b) for moving to change venue when the venue demand is served by mail. The court reversed the Appellate Division and remitted the matter for consideration of unresolved issues; Judge Pigott dissented.

Court
Court of Appeals of New York
Writing for the Court
Jones, J.; Chief Judge Lippman; Judge Ciparick; Judge Graffeo; Judge Read; Judge Smith; Judge Jones; Judge Pigott
Jurisdiction
New York
Decision date
October 20, 2011
Docket number
No. 172
Procedural posture
Defendants appealed from an Appellate Division order reversing Supreme Court's order granting a motion to change venue from Bronx County to Westchester County. The Court of Appeals reviewed the certified question whether the Appellate Division order was properly made.
Standard of review
De novo statutory interpretation and review of the certified question
Precedential value
Published opinion of the New York Court of Appeals; precedential.
Parties
Sol M. Usher, Sol M. Usher, M.D., P.C., Maxwell M. Chait, White Plains Hospital Center, Hartsdale Medical Group, P.C. v. Allen Simon, Barbara Simon, Sheldon Alter, Mid-Westchester Medical Associates, LLP, Westchester Medical Group, P.C., Marianne Monahan
Disposition
reversed_and_remanded

Topics

venuestatutory interpretationappellate procedurecivil procedurelegislative intent

Practice areas

civil procedurevenueappellate procedurestatutory interpretation

Questions Presented

  1. Whether CPLR 2103 (b) (2)'s five-day extension for periods measured from service by mail applies to the 15-day period in CPLR 511 (b) for moving to change venue.
  2. Whether the defendants' motion to change venue was timely when served 20 days after service by mail of the venue demand.

Holdings

  1. The five-day extension under CPLR 2103 (b) (2) applies to the 15-day period prescribed by CPLR 511 (b) when the demand for a change of venue is served by mail.

Key quotations

“We hold that it does.” (at 627)
“Simply put, defendants' motion papers are not initiatory and, because the demand was served by mail, defendants were entitled to the benefit of section 2103 (b) (2)'s five-day extension.” (at 629)

Factual background

Allen and Barbara Simon commenced a medical malpractice action in Bronx County. The Usher defendants served verified answers and demands to change venue to Westchester County by mail on August 20, 2009, asserting that the parties, defendants' offices, and the medical care at issue were connected to Westchester County. They served their venue motion 20 days after serving the demand.

Procedural history

Plaintiffs commenced a medical malpractice action in Supreme Court, Bronx County. The Usher defendants served answers and demands for a change of venue by mail and moved for a change of venue 20 days later. Supreme Court granted the motion, but the Appellate Division unanimously reversed and denied it as untimely. The Court of Appeals reversed the Appellate Division and remitted for consideration of issues not previously decided.

Remand instructions

The order of the Appellate Division was reversed with costs, and the case was remitted to that court for consideration of issues raised but not determined on the appeal.

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