New York State Court of Claims

New York State Court of Claims

CHEM-PUTER FRIENDLY, INC. v. THE STATE OF NEW YORK, #2000-011-540, Claim No. 101404, Motion No. M-61321


Claimant's motion for partial summary judgment, application to dismiss the counterclaims and request for a change of venue are all denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Thomas J. McNamara
Claimant's attorney:
Seymour N. Harris, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Reuben Goldwaser, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
June 19, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brought this action to recover the cost of goods sold and delivered to six psychiatric centers operated by Defendant. In the answer, Defendant raised counterclaims alleging that Claimant and two related businesses, under common ownership and operated as one enterprise, sold and delivered goods to two psychiatric centers operated by Defendant and that those sales, as well as those upon which the claim is based, violated State Finance Law §§112 and 163 in that the sales were not approved by the Office of the State Comptroller and were never let out to public bid. Claimant has now moved for summary judgment awarding $4,947.02 on a portion of the claim, for summary judgment dismissing the counterclaims and for a change of venue to the New York district.

To prevail on a motion for summary judgment, the moving party must tender evidentiary proof in admissible form sufficient to justify the direction of summary judgment in his or her favor whereupon the burden shifts to the party opposing the motion to raise a triable issue of fact (Hackstadt v Hackstadt, 194 AD2d 908).

The motion should be denied where there is any significant doubt whether a material issue of fact exists or if there is even arguably such an issue (Bulger v Tri-Town Agency, 148 AD2d 44, 47).

In support of the motion for summary judgment awarding $4,947.02, Claimant maintains that based upon an audit performed by the Office of the State Comptroller, it was advised that there was an amount due to Claimant of $4,947.02 out of the $10,106.34 claimed here. Based upon the results of the audit, Claimant argues that it is entitled to a judgment in at least that amount. Defendant, however, in an affidavit by Roslyn Watrobski, senior state accounts auditor in the Office of the State Comptroller, avers that the vouchers representing the $4,947.02 have been paid by the State. Her affidavit raises a clear issue of fact and requires that this portion of the motion be denied.

The application to dismiss the counterclaims must also be denied. Claimant's conclusory assertion that the counterclaims are frivolous is insufficient to establish its right to judgment as a matter of law.

CPLR 510 (3) provides for a discretionary change of venue where "the convenience of material witnesses and the ends of justice will be promoted by the change". The party seeking the change of venue bears the burden of proof (see, Andros v Roderick, 162 AD2d 813, 814). In order to demonstrate that venue should be changed, the moving party must "supply the names, addresses and occupations of the witnesses whose convenience he claims will be affected, indicate that the prospective witnesses have been contacted and are willing to testify on his behalf and specify the substance of each witness's testimony, which must be necessary and material" (Stainbrook v Colleges of Senecas, 237 AD2d 865, quoting Andros v Roderick, supra at 814). Though Claimant maintains that it would be an undue hardship for Claimant's witnesses to travel to Albany for trial, neither the names of the witnesses nor the substance of their testimony is revealed. Accordingly, the application for a change of venue is denied.

The motion for partial summary judgment, the application to dismiss the counterclaims and the request for a change of venue are all denied.

June 19, 2000
Saratoga Springs, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion dated March 7, 2000.
2. Affidavit in Support of Bart Ruben sworn to the 6th day of March, 2000.
3. Affirmation in Support of Seymour N. Harris, Esq., dated March 7, 2000 with exhibits annexed.
4. Affidavit in Opposition of Roslyn Watrobski sworn to the 23rd day of March, 2000 with exhibits annexed.
5. Memorandum of Law dated March 27, 2000.
6. Reply Affidavit of Bart Ruben sworn to the 10th day of April, 2000.
7. Reply Affirmation of Seymour N. Harris, Esq., dated April 10, 2000.