Venue in New York medical malpractice litigation is based upon the residence of the parties at the time the case is commenced. A party may be a resident of more than one county, but residence implies a bona fide intent to remain with some degree of permanency. CPLR §503, as discussed in Deas v. Ahmed, 120 A.D.3d 750 (2d Dept. 2014). Although venue is usually a matter to be settled in the pleadings stage of the action, there are developments in the investigatory, discovery and trial preparation stages which may bring venue issues before the court at virtually any point before trial.
The focus in venue litigation is generally whether the attorney for the plaintiff has chosen a proper county in preparing the complaint, or whether the court should exercise its discretion to change the chosen venue based upon the convenience of material witnesses and the interests of justice. CPLR Rule 511. The defendant is most often required to raise issues with regard to proper county by the time the answer is served, and move on any other ground within a reasonable time after the action is commenced. Contractual venue provisions and changes of venue because an impartial trial cannot be obtained in an otherwise proper county are beyond the purview of this article, but venue can be an issue litigated up to the point of the selection of the jury for trial.
Litigation of CPLR Article 5 Issues
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