New York State Court of Claims

New York State Court of Claims

VARELA v. THE STATE OF NEW YORK, #2001-011-564, Claim No. 99292, Motion No. M-63341


Claimant's request for a change of venue is 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:
Alberto Varela, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 1, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application to remove this action from the Albany District to the WhitePlains District of this Court.

CPLR 510 provides three instances where the court, upon motion, may change the place of trial of an action: 1) the county designated for that purpose is not the proper county; or 2) there is reason to believe that an impartial trial cannot be had in the proper county; or 3) the convenience of material witnesses and the ends of justice will be promoted by the change. Claimant makes this motion to remove the action on the basis that he, a prisoner of the State of New York, was transferred against his will from Great Meadow Correctional Facility to Sing Sing Correctional Facility and a trip to the location of trial would be an inconvenience.

Claimant fails to show any reason why 1) the place designated for the trial is not proper; or that 2) an impartial trial cannot be had in the place designated.

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).

The only witness identified in the application whose convenience will be affected by a change of venue is the claimant himself. However, in weighing the factors to be considered in deciding a motion to change venue, the convenience of parties who are witnesses is excluded from the inquiry (A.M.I. Intl. v. Gary Pool Sales & Serv., 94 AD2d 890). Inasmuch as Claimant has failed to establish a basis for changing the venue of the action, the motion is denied.

August 1, 2001
Saratoga Springs, New York

Judge of the Court of Claims

Papers Submitted:

1. Notice of Motion dated March 30, 2001
2. Affidavit in Support of Alberto Varela sworn to the 3rd day of April, 2001
3. Affidavit in Opposition of Dennis M. Acton, Esq. sworn to the 17th day of April, 2001.