Outside Counsel

Fridays are Law Days at Outside Counsel (sometimes). Wager v Pelham Union Free Sch. Dist. is a
fun decision-- apparently a case of first impression-- about venue. In New York venue can be based on the residence of any party, or on the place where the claim arose-- or on a few other specialized circumstances. Among the later is the rule that municipalities and municipal corporations are to be sued in the county where they are located. The unfortunate Mr. Wagner was working on the roof of a school in Westchester when it collapsed. He was taken to Jacobi Hospital in the Bronx, where they malpracticed him up. His lawyers brought two actions: a Labor Law § 240 claim against the Westchester school district, commenced in Westchester pursuant to CPLR 504(2) and a med mal action against the New York City Health and Hospitals Corporation, commenced in the Bronx, pursuant to Unconsolidated Laws of NY § 7381, which requires  an action against the NYCHHC to be commenced in the county within the City of New York in which the cause of action arose.

After issue was joined and some documentary discovery was exchanged, the NYCHHC moved in the Supreme Court, Westchester County, to consolidate both actions in Westchester County. Why would they do that, Bill? Well, the difference between juries in the Bronx and juries in Westchester is something like the difference between North and South Korea.  NYCHHC routinely gets clobbered when it tries cases on the Grand Concourse-- why wouldn't they take a flyer in White Plains? Naturally the plaintiff objected. A § 240 case in Westchester isn't a terrible thing, but a med mal case there is a good deal less desirable. But hey, isn't venue jurisdictional in cases against entities like NYCHHC (or the Putnam Union Free School District)? After all, Unconsolidated Laws of NY § 7405 expressly provides that the venue provisions favoring the NYCHHC supersede inconsistent provisions of any other general, special, or local law, such as, in this instance, CPLR 504(2).

Well, no says the Appellate Division, Second Department. The NYCHHC expressly waived the venue provision contained in section 7401(3) of the New York City Health and Hospitals Corporation Act for actions brought against it. Defendants are allowed to waive improper venue-- so it follows that they should be able to waive the venue provisions of § 7405 as well. Even though venue provisions are couched as manditory they are not jurisdictional. The remedy when a case is improperly venued is not dismissal-- it is a change of venue. "Such venue provisions are designed to further the convenience of governmental entities, including the NYCHHC and its employees, who are in public service."

The placement of venue rests in the sound discretion of the court, and an order determining venue should not be disturbed in the absence of a showing that the court improvidently exercised its discretion.

So, even though the statutes use the word "shall", venue is not necessarily a straight up question of law; the standard of review is whether or not the court abused its discretion in setting the venue in one place or another.

All of this raises an interesting tactical question. The change of venue took place as part of a motion to consolidate made by NYCHHC. The plaintiff opposed consolidation, but did not raise that issue on appeal.  Had the plaintiff done so,the Second Department would have had to consider whether consolidation was appropriate. It would have been a bigger record, and a more expensive appeal, but it seems to Outside Counsel that, in addition to all the causation arguments that were probably raised below it might have made a difference to the Appellate Division that Labor Law § 240 is a strict liability statute. Chances are that by the time the matter is trial ready summary judgment as to the school district will have been granted, and the proof as regards that entity will be exclusively on damages. Sure, there may be common questions as to causation, but I think one could argue that the procedural posture of the two claims would be confusing to a jury-- even a jury of Westchester sophisticates. By not appealing nisi prius' decision to consolidate the plaintiff gave up that argument, and now he will have a Westchester jury.