New York State Court of Claims

New York State Court of Claims

FLEURIVAL v. THE STATE OF NEW YORK, #2001-001-004, Claim No. 103236, Motion No. M-62722


The Court grants claimant's motion for a change of venue.

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):

Susan Phillips Read
Claimant's attorney:
Zecher, Capacci, Devalk, Hendricks & Power, P.C.By: Matthew P. Side, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Timothy P. Mulvey, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
January 8, 2001

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 November 7 and filed November 13, 2000; Affidavit in Support of Matthew P. Side, Esq., sworn to November 7 and filed November 13, 2000; the claim, sworn to October 9 and filed October 17, 2000; and the answer, dated November 3 and filed November 6, 2000.

Claimant Nestor Fleurival ("claimant") alleges that on August 9, 10 and 16, 2000, employees of the New York State Department of Health ("DOH") repeatedly approached him at his place of employment at Tom DeMaree Farms in Williamson, New York and informed him, supposedly within the hearing range of coworkers, that he might have AIDS and insisted that he take a blood test. Claimant initially refused to take the blood test because he had recently taken such a test for insurance purposes, which indicated that he was HIV negative; however, claimant eventually took another test on August 16, 2000, which likewise indicated that he was HIV negative (claim, sworn to October 9 and filed October 17, 2000 ["claim"], ¶¶ 4-30, 48-54). Claimant thereafter commenced this action against the State of New York ("defendant" or "the State") to seek damages for causes of action sounding in defamation (claim, ¶¶ 4-35); invasion of privacy (claim, ¶¶ 36-40); violations of the confidentiality provisions of Public Health Law § 2782 (claim, ¶¶ 41-46); violations of the consent provisions of Public Health Law § 2781 (¶¶ 47-59); and 42 USC § 1983 (claim, ¶¶ 60-66).

In accordance with the standard practice of the Court of Claims, the claim was assigned to one of the eight districts covering the State (see, 22 NYCRR 206.4). Because the claim arose out of a determination made by the DOH, which is headquartered in Albany, the claim was assigned to the Albany district. Claimant now moves for a change of venue to the Syracuse District (Wayne County), stating that the claim should be venued in Wayne County where it arose (Affidavit in Support of Matthew P. Side, Esq., sworn to November 7 and filed November 13, 2000 ["Side Aff."], ¶¶ 5-8). Claimant additionally asserts, without any elaboration, that the Syracuse district would be more convenient based on the availability of witnesses (Side Aff., ¶¶ 7-8).

There are no provisions in the Court of Claims Act governing motions for change of venue; consequently, the relevant provisions of the CPLR apply (see, Court of Claims Act § 9 [9]; Richards v State of New York, 281 App Div 947; Poolet v State of New York, 56 Misc 2d 933). 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 where the material events otherwise took place or where the principal office of the respondent is located" (CPLR 506 [b]). Accordingly, this claim was properly venued in the Albany district, site of DOH's principal office, although it might have also been properly assigned to the Syracuse district, where the material events constituting this claim transpired.

The State has not responded to this motion and has answered the claim from the Office of the Attorney-General located in Syracuse, suggesting to the Court that defendant does not oppose the requested change of venue and expects to handle the action out of its Syracuse district. Additionally, comparison of the relative congestion of the calenders in the two districts--a factor to consider when a change of venue is requested (see, Kessler v State of New York, 256 AD2d 1154; Poolet v State of New York, 56 Misc 2d 933, 934, supra)--indicates that a change of venue will not delay resolution of the claimant's action, which is still in the early stages of development.[*]

Based upon the foregoing, the Court grants claimant's motion for a change of venue; the Court hereby transfers the claim to the Syracuse district trial calender of the Honorable Diane L. Fitzpatrick.

January 8, 2001
Albany, New York

Judge of the Court of Claims

As of November 2000, there were 862 claims pending in the Albany district to which four judges are assigned, as compared to 421 pending in the Syracuse district to which two judges are assigned.