New York State Court of Claims

New York State Court of Claims

POLSKY v. THE STATE OF NEW YORK, #2000-001-017, Claim No. 95936, Motion No. M-61265


Claimant's motion for change of venue is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The original claim names "The New York State Division for Youth" and "The State of New York" as defendants. The Court sua sponte has amended the caption to reflect the only proper defendant, the State of New York (see, Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

susan phillips read
Claimant's attorney:
Alan Polsky, Esq., Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 31, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's motion for a change of venue: Notice of Motion, dated February 23, 2000 and filed February 25, 2000; Affirmation of Alan Polsky, Esq., dated February 23, 2000 and filed February 25, 2000, with annexed Exhibits A-E; Affirmation in Opposition of Michele M. Walls, Esq., dated March 8, 2000 and filed March 10, 2000; and Reply Affirmation of Alan Polsky, dated March 14, 2000 and filed March 17, 2000, with annexed Exhibits A and B.

Claimant Alan Polsky ("claimant"), an attorney appearing pro se, seeks to recover $3,560.00 allegedly owed him for legal services provided to a minor in the custody of the New York State Division for Youth ("DFY").[1] All discovery in this action has been completed; a note of issue/certificate of readiness was filed on January 18, 2000. The claim is assigned to the Albany district.

According to claimant, representatives of a DFY group home located in Suffolk County contacted the Pro Bono Project of the Suffolk County Bar Association to represent a female minor resident charged with assaulting a fellow high school student with a baseball bat. This individual had been immediately suspended from school pending a disciplinary hearing (Affirmation of Alan Polsky, Esq., dated February 23, 2000 and filed February 25, 2000 ["Polsky Aff."], ¶ ¶ 3 and 4).

In his bill of particulars, claimant states that he notified DFY that he had been asked[2] to represent the minor in the disciplinary hearing; that DFY, as the minor's legal guardian, was free to provide her counsel; and that if DFY failed to do so, he would represent her and bill DFY for his services (Polsky Aff., Exhibit C, ¶ 6). Claimant alleges that he gave this notice--to which he received no response--on or about January 9, 1996 by telephone to three individuals: Supervisor Al Robinson; Youth Development Counsellor Charles Goodlett; and Intake Court Liaison Sal Nauasaitis (Polsky Aff., ¶ 4 and Exhibit C, ¶ 6). Claimant subsequently billed DFY on March 27 and April 5, 1996 in the amount of $3560.00 for services rendered to the minor, but has not been paid.

Claimant now moves for an order changing the venue of this action to the New York City district in order to accommodate the convenience of non-party witnesses (CPLR 510 [3]). He asserts that the witnesses who will be called on his behalf--representatives of the Pro Bono Project, the group home and the school district--reside in that district and that they will be seriously inconvenienced if required to travel to Albany to attend trial (Polsky Aff., ¶ 5). He further states that these witnesses will testify, respectively, to the following facts: that claimant was assigned to the case by the Pro Bono Project and that he was permitted, when possible, to seek payment for his services from an interested third-party; that the minor was in DFY's custody at the time she faced disciplinary charges; that the group home had no provision in its funding for hiring an attorney for her; and that claimant, in fact, represented the minor at two scheduled school disciplinary hearings seeking her expulsion from school (Reply Affirmation of Alan Polsky, dated March 14, 2000 and filed March 17, 2000, ¶ 5).

The State of New York ("defendant") opposes the motion on the grounds that conclusory statements of inconvenience are insufficient to obtain the relief sought and that at least claimant's initial submission does not satisfy the criteria set forth in O'Brien v Vassar Bros. Hosp. (207 AD2d 169). The court in O'Brien held that where venue has been properly designated in the first instance and a change is sought for the convenience of witnesses, the party requesting the change must provide 1) names, addresses and occupations of the witnesses; 2) the witnesses' proposed testimony "so that the court may judge whether the proposed evidence of the witnesses is necessary and material"; 3) a statement that the witnesses are willing to testify; and 4) a showing that the witnesses would, in fact, be inconvenienced if the trial were not moved. An additional factor not mentioned in O'Brien but held to be relevant to these motions is the relative congestion of the calendars in the courts of the two venues (Kessler v State of New York, 256 AD2d 1154; Karpel v Roberts, 273 App Div 896; Poolet v State of New York, 56 Misc 2d 933, 934). The decision whether to change venue based on the convenience of material witnesses is discretionary (O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171 supra).

Claimant contends that the holding in O'Brien does not apply to his claim because it was initially properly assigned to the New York district of the Court of Claims. He further asserts that his Reply Affirmation provides all of the information called for by O'Brien anyway.

First, claimant's contention that this claim was initially assigned to the New York district is simply wrong: by letter dated April 24, 1997, the Chief Clerk of the Court informed the parties that the claim had been received and stated that "[i]t is our determination that this claim accrued in Rensselaer County." The claim was assigned to former Judge Louis C. Benza, who was assigned to the Albany district at that time, not to the New York district as claimant mistakenly declares. Thus, the claim has always been assigned to the Albany district.

When a claim is filed in the Court of Claims, the Chief Clerk assigns it to one of eight districts covering the State (Rule 206.4 of the Uniform Rules for the Court of Claims). The calendar of each district is composed of "claims arising within the counties constituting said district" (id.). There are no provisions in the Court of Claims Act relevant to motions for change of venue; consequently, the relevant provisions of the CPLR apply (Court of Claims Act § 9 [9]; Richards v State of New York, 281 App Div 947).

It is the Chief Clerk's practice to assign claims in accordance with CPLR 506 (b), which provides, in relevant part, that proceedings against a body or officer are to be commenced "where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law . . . or where the material events otherwise took place, or where the principal office of the respondent is located . . . ." This claim was therefore assigned to the Albany district, which includes Rensselaer County, site of the principal office of DFY, where any policies or determinations about paying attorneys who represent its wards would be made.

Next, although claimant has not addressed the relative congestion of the two districts in question, that information is naturally readily available to the Court. As of April 30, 2000, there were 920 open claims in the Albany district, to which four judges are assigned, and 1,295 open claims in the New York district, which also has four full-time judges.

The Court is willing to accept that it would be a genuine inconvenience for the witnesses listed by claimant to attend trial in Albany, rather than Suffolk County and, at least for purposes of this motion, the Court also assumes that these witnesses are willing to testify. Because the critical question is whether the content of their anticipated testimony will be both material and necessary to resolution of this claim, the Court must assess the nature, value and probable effect of the testimony to be provided by the witnesses whose inconvenience is the basis for claimant's request to change venue (see, e.g., Velasquez v C.F.T., Inc., 240 AD2d 178 [witnesses who saw vehicle only after it was damaged could not competently testify about any pre-existing defect]; Moghazeh v Valdes-Rodriguez, 151 AD2d 428 [witnesses who saw the injured party after an accident could not testify as to whether she was using a seat belt at the time of the accident and their observation of her medical condition could not be given more weight than medical testimony]).

Most of the facts to which the Suffolk County witnesses are expected to testify provide necessary background to the claim, but only two facts may be fairly characterized as "material" in the sense that they bear a strong relation to the central issues in the case; i.e., whether DFY can be obligated to pay for legal services rendered to a minor in DFY custody and, if so, under what circumstances: claimant must establish that he provided such representation and that the individual whom he represented was in the custody of DFY at the time.

The live testimony of witnesses, however, hardly appears "necessary" to establish these facts. There are inevitably a number of routinely kept, institutional documents that would provide far more useful and legally significant proof of these facts than would the memories of people who saw claimant at the disciplinary hearings, or knew that the minor was a resident in the DFY group home during that time. In addition, these are facts that could well be the subject of a stipulation between the parties, requiring no testimony or other proof at all. The other facts to which the named witnesses are expected to testify--claimant's participation in the Pro Bono Project, the rules of that project relating to third-party payment of fees, the funding resources of the group home and the nature of the charges against the minor--may be relevant as showing how the situation arose, but they do not bear directly on the legal and factual issues in dispute and might also easily be the subject of stipulation.

While motions to change the venue of an action are in no sense unusual and are frequently granted, any such change inevitably influences the parties and the orderly administration of justice. This is perhaps particularly true with respect to Court of Claims actions. Each change of venue inescapably affects the general public, because ultimately all defense costs are paid out of the public fisc. It has also been observed that because of the large size of the districts into which the Court of Claims is divided and the comparatively small number of judges hearing cases in each district, "changes of venue in the Court of Claims should only be granted for overriding and substantial reasons" in order to avoid severe problems with the efficient administration of the Court (Poolet v State of New York, 56 Misc 2d 933, 935, supra).

In summary, the testimony of the non-party witnesses does not appear to be material or necessary to the issues in dispute and change of venue in the Court of Claims is disfavored because of its effect on the administration of the overall functions of the court. For these reasons, the Court denies claimant's motion.

May 31, 2000
Albany, New York

Judge of the Court of Claims

[1]Chapter 436 of the Laws of 1997 transferred the functions, powers and duties of the Division for Youth to the Office of Children and Family Services, an autonomous office within the Department of Family Services, the successor agency to the former Department of Social Services.
[2]The Court notes that claimant throughout his papers describes his engagement as counsel in the passive voice, obscuring exactly who, in fact, engaged him to represent the minor.