New York State Court of Claims

New York State Court of Claims

HOFFMAN v. THE STATE OF NEW YORK, #2001-015-179, Claim No. 103815, Motion No. M-63623


Synopsis


Claimant who sought order changing venue from Albany District to New York District failed to demonstrate proper basis to support transfer pursuant to CPLR § 510 (3) on grounds of the convenience of material witnesses.

Case Information

UID:
2001-015-179
Claimant(s):
PETER HOFFMAN
Claimant short name:
HOFFMAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103815
Motion number(s):
M-63623
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Peter Hoffman, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 24, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant's motion for a change of venue pursuant to article 5 of the CPLR from the Albany District to the New York District based upon the convenience of material witnesses is denied. The claim seeks to recover damages in the amount of $50,000.00 arising out of the alleged unlawful suspension of the claimant's driver's license without notification, hearing or due process. Claimant's motion is not supported by an affidavit but by an unsworn document which is not in affidavit form (see, CPLR § 2309 (b)) and does not purport to have been made before a person authorized to administer an oath (see, CPLR § 2309 (a)). Moreover, claimant has not identified himself as a person authorized under CPLR 2106 to submit an affirmation in lieu of an affidavit. Accordingly, the submitted document is not entitled to judicial cognizance (Doumanis v Conzo, 265 AD2d 296). The Court will assume, however, that the defendant has waived any objection to this technical defect by choosing to address the sufficiency of the allegations contained in the purported affidavit (see, Sam v Town of Rotterdam, 248 AD2d 850).

The claimant has alleged that the act (not otherwise specified) took place in New York City; that the matter (presumably this action) was commenced in New York City and that the remainder of contacts for this matter are in New York City. He alleges further that the Attorney General and the Department of Motor Vehicles all have offices in New York City and that the defendant will not be inconvenienced by the requested transfer. Claimant seeks the change of venue primarily to avert his own "financial stress and inconvenience."

In opposition to the motion defense counsel alleges that claimant has failed to establish adequate reason under existing case law to merit a change of venue and that the defendant will be substantially inconvenienced by a change of venue to New York City.

While no section of the Court of Claims Act is addressed to a change of venue, the transfer of a claim from one district to another for trial is authorized by section 206.4 (b) of the Uniform Rules for the Court of Claim [22 NYCRR § 206.4 (b)] which provides:
No claim shall be transferred for trial from one district to another unless ordered upon motion on notice setting forth the grounds, or upon order of the Presiding Judge.
Thus, upon a properly noticed motion this Court may exercise its discretion and order the transfer of a claim from one district to another, even where the claim was initially assigned by the Chief Clerk of the Court to the proper district.

A motion seeking such a transfer, particularly one based on the alleged convenience of material witnesses (CPLR § 510 (3)) as this motion purports to be, has been treated as a motion to change venue. The criteria applicable to such motions as set forth in O'Brien v Vassar Bros. Hosp., 207 AD2d 169, has been applied to transfer requests in this Court (see, Polsky v State of New York, Ct Cl, May 31, 2000 [Claim No. 95936] Read, J. unreported). As Presiding Judge Read observed in Polsky:
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.
Judge Read, citing an earlier case, further found that:
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).
In the instant case, as in Polsky, supra the claimant mistakenly alleges that this claim was commenced in the Court's New York District. An affidavit of service dated February 12, 2001 and filed with the Court indicates service of the claim upon a named individual at 120 Broadway, New York, New York, a location identified only as "managing attorney's office." Even if the office where such service occurred was, in fact, the Attorney General's Office the place of service upon the Attorney General is not determinative of the district to which a claim will be assigned by the Chief Clerk of the Court.

By letter dated March 8, 2001 the Chief Clerk informed the parties that the claim had been received and stated that "[i]t is our determination that this claim accrued in Albany County." The defendant herein alleges that the principal office of the Department of Motor Vehicles is in Albany and, therefore, the Chief Clerk correctly assigned the claim to the Albany District. The Court agrees with the defendant's assertion that the claim's initial assignment to the Albany District of the Court of Claims was correct.

What remains for consideration is whether this pro se claimant has sufficiently demonstrated that the convenience of material witnesses and the ends of justice will be promoted by a transfer of the claim to the New York District under the O'Brien (supra) standards set forth above. Here claimant, in response to the defendant's omnibus discovery demands, listed only one witness (Lotte Hoffman, 419 East 57th Street, New York, New York 10022) other than himself as being from the New York City area and it cannot be determined whether Lotte Hoffman is, in fact, a "material" witness. All other witnesses identified in claimant's response to the defendant's omnibus demands appear to reside or have their place of business within the Albany District. Moreover, claimant has not set forth the proposed testimony of the allegedly inconvenienced material witness or a statement by such witness that she is willing to testify and would be inconvenienced if the trial were not moved.

Additionally, as noted by Judge Read in Polsky (supra) the Court's calendar and its relative congestion in comparing the two districts at issue, especially in light of the recent catastrophic destruction of the Court of Claims' Chambers at 5 World Trade Center, New York, New York, disfavors the requested transfer.

Claimant has not persuaded the Court that this matter should be transferred and the motion is, accordingly, denied.


September 24, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion filed June 15, 2001;
  2. "Affidavit" (unsworn) signed by Peter Hoffman dated June 5, 2001;
  3. Affirmation of Kathleen Resnick dated July10, 2001, with exhibits;
  4. "Affidavit" (unsworn) signed by Peter Hoffman dated July 16, 2001;
  5. Affirmation of Kathleen Resnick dated July 17, 2001.