Opinion
June 16, 1977
Order, Supreme Court, New York County, entered on January 17, 1977 denying defendants-appellants' motion for change of venue to Suffolk County, unanimously reversed, on the law and in the exercise of discretion, and motion granted, without costs and without disbursements. This medical malpractice action arose in Suffolk County, in which county plaintiffs reside, as does a vast preponderance of the nonparty witnesses. "The general rule is that a transitory action, such as this, other things being equal, should be tried in the county in which the cause of action arose." (Slavin v Whispell, 5 A.D.2d 296, 297-298.) The language "other things being equal" refers to the number of witnesses residing in the counties opted for by the litigants. If, as in the case at bar, the county with the preponderance of witnesses is the county in which the cause of action arose, venue should be therein placed. (2 Weinstein-Korn-Miller, N Y Civ Prac, par 510.17, p 5-139.) The convenience of witnesses in this action far outweighs the "mere fact" that one of the defendants resides in New York County. (Blackfriars Realty Co. v Ettlinger, 56 A.D.2d 826. )
Concur — Murphy, P.J., Kupferman, Evans, Capozzoli and Lane, JJ.