New York State Court of Claims

New York State Court of Claims

LESANE v. THE STATE OF NEW YORK, #2002-009-37, Claim No. 102912, Motion No. M-64955


Claimant's request for a change of venue was 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):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 26, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion requesting a change of venue from the Utica district pursuant to CPLR § 510(2).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2

Affirmation in Opposition 3

Reply Affidavit, with Exhibits 4

In his claim, filed August 14, 2000, claimant alleges that on June 6, 2000, while incarcerated at Gouverneur Correctional Facility, he was verbally assaulted by a correction officer at the facility. By letter to the parties dated August 29, 2000, the Clerk of the Court informed the parties that the claim had accrued in St. Lawrence County, where Gouverneur Correctional Facility is located. On that basis, and pursuant to § 206.4 of the Uniform Rules for the Court of Claims, the claim was assigned to the Utica District of the Court of Claims. Claimant now seeks to change the venue of the claim to the New York District, arguing that he will not obtain a fair and impartial trial in an upstate Court.

Pursuant to the rules of this Court, "[n]o 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." (Uniform Rules for the Court of Claims [22 NYCRR] § 206.4[b]). There are no specific provisions in the Court of Claims Act relevant to motions for a change of venue, and therefore the relevant provisions of the CPLR are applicable (Court of Claims Act, § 9[9]). The substantive law applicable to a change of venue is found in CPLR 510 and the related case law. Pursuant to CPLR 510(2), a court has the authority to change the place of trial of an action if there is reason to believe that an impartial trial cannot be held in the designated place for trial.

In his motion, claimant contends that as an Afro-American, he will not receive a fair and impartial trial of this claim before a "predominantly white jury" (see Item 2, par. 3) in upstate New York. However, there are no jury trials in the Court of Claims (Court of Claims Act, § 12[3]; see also, Graham v Stillman, 100 AD2d 893), and therefore claimant's arguments are without merit.

Furthermore, this Judge has never personally met either the claimant or the correction officer who is the alleged perpetrator of this verbal assault against claimant. This Judge is also not aware of any personal connection whatsoever to either the claimant or his alleged assailant. As such, this Judge knows of no reason why he should not hear and determine this claim.

In considering a motion for a change in venue under CPLR § 510(2), a moving party must establish a strong possibility that an impartial trial cannot be held, meaning that the movant must do more than allege a mere suspicion or feeling that a fair trial cannot be held (DeBolt v Barbosa, 280 AD2d 821). In this application, and on the papers submitted in support, claimant has not established any reason, beyond a mere suspicion, justifying a change of venue.

Claimant also contends that he fears for his personal safety, should it be necessary for him to be temporarily transferred from his current location at Lincoln Correctional Facility, in New York City, to a facility in upstate New York to attend his trial. He contends that Correction Officer Diettrich, the officer who allegedly verbally assaulted claimant, may have friends or acquaintances as correction officers in these upstate facilities, who may desire to harm claimant. Again, mere suspicions or feelings are not sufficient for this Court to change venue, and the unsupported statements of claimant, who has not established any direct or indirect threats to his safety, do not establish a sufficient basis for this Court to grant his request.

Accordingly, for the reasons set forth above, it is

ORDERED, that Motion No M-64955 is hereby DENIED.

August 26, 2002
Syracuse, New York

Judge of the Court of Claims