New York State Court of Claims

New York State Court of Claims

ROSENTHAL v. THE STATE OF NEW YORK, #2002-019-522, Claim No. 105222, Motion No. M-64518


Claimant failed to establish basis for change of venue from Binghamton District to New York District; motion denied.

Case Information

BERT ROSENTHAL and HONEY S. ROSENTHAL The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
NAPOLI, KAISER & BERN, LLPBY: Elizabeth Montesano, Esq., of counsel
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 14, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for an order changing venue from the Binghamton District to the New York District pursuant to CPLR 510 (3). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-64518, dated January 2, 2002, and filed January 7, 2002.
  2. Affirmation of Elizabeth Montesano, Esq., in support of motion, dated January 2, 2002, with attached exhibit.
  3. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated January 22, 2002, and filed January 24, 2002.
  4. Reply Affirmation of Elizabeth Montesano, Esq., in support of motion, dated January 29, 2002, and filed January 30, 2002.
  5. Affidavit of Bert Rosenthal, in support of motion, sworn to January 28, 2002.
On August 23, 2001, Claimant Bert Rosenthal was visiting the Binghamton University campus located in Vestal, New York, from his home in Brooklyn, New York.[2] Claimant alleges he stepped onto a missing and broken curb approximately one foot in length after exiting a Binghamton University shuttle bus and suffered a broken ankle.

Upon the filing of this Amended Claim, the Chief Clerk informed the parties that "[i]t is our determination that this claim accrued in Broome County". (Letter of Chief Clerk dated December 5, 2001). The rules of this Court dictate that the calendar of each of the eight districts is to be composed of claims arising within the counties constituting said district. (Uniform Rules for the Court of Claims [22 NYCRR] § 206.4). Inasmuch as this claim accrued in Broome County it was properly assigned to the Binghamton District in the first instance. By way of this motion, Claimant now seeks to change the venue of this claim to the New York District citing "[t]he convenience of plaintiffs, the treating physicians, and material witnesses which will be called to testify at the time of trial." (Affirmation of Elizabeth Montesano, Esq. dated January 2, 2002, ¶ 7).

This Court's rule states "[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]). The substantive law applicable to a change in venue is found in CPLR 510 and the related case law. (CCA 9 [9]). CPLR 510, subdivision (3), states that a court may change the place of trial of an action when "[t]he convenience of material witnesses and the ends of justice will be promoted by the change." It is well-settled that such a motion is directed to the Court's discretion (O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171), and that the burden of proof lies with the party seeking the change of venue. (Andros v Roderick, 162 AD2d 813, 814). In order to carry this burden, the party seeking the venue change must establish the following: (1) the names, addresses and occupations of the witnesses; (2) the witnesses' proposed testimony to enable the court to determine if the testimony will provide necessary and material evidence; (3) a statement that these witnesses are willing to testify; and (4) a showing how these witnesses would actually be inconvenienced if the requested relief were not granted. (O'Brien v Vassar Bros. Hosp., supra, 207 AD2d 169).

Here, Claimant has failed to make even a minimal showing relative to any of these factors. Claimant represents that the witnesses to be called at trial include himself; his wife, Honey Rosenthal; a treating physician; and a radiologist. It appears that Claimant's primary reason for seeking this change of venue is that New York County is "[p]laintiffs' county of residence and place of medical treatment." (Affirmation of Elizabeth Montesano, Esq. dated January 2, 2002, ¶ 5). First, with respect to Claimant himself, a litigant's own inconvenience is not relevant. (A.M.I. Int. v Gary Pool Sales & Serv., 94 AD2d 890). Second, with respect to Claimant's wife, Honey Rosenthal, Claimant fails to specify her proposed testimony to enable this Court to determine if it would provide necessary and material evidence. For instance, did Mrs. Rosenthal witness the accident or will her testimony relate solely to the derivative cause of action? In any event, assuming Mrs. Rosenthal's willingness to testify, the manner of her alleged inconvenience is not specified. Although the Court assumes the alleged inconvenience is the approximate 180 mile trip between Brooklyn and Binghamton, this is not clear from Claimants' papers. Rather, Claimant asserts only the conclusory statement that "[m]y wife would be greatly inconvenienced unless venue is changed in the matter to New York County." (Affidavit of Bert Rosenthal, ¶ 6). Accordingly, Claimant has failed to carry his burden relative to a change in venue due to his own inconvenience or that of his wife.

Next, with respect to the physician and radiologist, Claimant has not provided their individual names and addresses as mandated by case law. Rather, Claimant offers only that he "[u]nderwent medical treatment at Kings Highway Orthopedic Associates, located in Brooklyn, New York, and also had x-rays performed in Brooklyn." (Affidavit of Bert Rosenthal, ¶ 5). Claimant has not provided the proposed testimony of the physician or radiologist to enable this Court to determine if their testimony will provide material and relevant evidence. Once again, Claimant has not specified the manner of their alleged inconvenience, but only indicated "[i]t is my belief that causing my physicians and health care professionals to testify in Broome County, New York would inconvenience them". (Affidavit of Bert Rosenthal, ¶ 7). Even if the Court were to again assume the alleged inconvenience is the distance between Brooklyn and Binghamton, Claimant has not indicated the willingness of the medical providers to testify at trial in the first instance. Furthermore, inasmuch as this matter will be bifurcated, Claimant has not indicated how this medical testimony would be material and necessary to a liability determination. Generally, as pointed out by the State, the convenience of a damages witness, medical or otherwise, is subordinate to the convenience of liability witnesses. (Esser v Ciarmella, 203 AD2d 159). In any event, even if this Court were to consider the inconvenience of the proposed medical witnesses at this stage, Claimant has not established that the appearance of these unnamed medical witnesses is even necessary. For instance, viable alternatives exist such as using the videotaped testimony of medical witnesses or even stipulating undisputed medical records into evidence. In sum, Claimant has failed to meet his burden relative to the medical witnesses.

Separate and apart from the proposed medical witnesses, the Court notes that Claimant makes no references to the convenience of local Broome County witnesses who might be called by the State to testify regarding the alleged dangerous condition such as maintenance workers, the bus driver, etc. Although the State does not expressly indicate that it will call such witnesses it does raise the possibility and their inconvenience is obvious if required to travel to New York County.

A fifth factor, albeit not a dispositive one, not articulated in O'Brien, but recognized by other courts, is the relative congestion of the calendars in the two competing venues. (A.M.I. Int. v Gary Pool Sales & Serv., supra, 94 AD2d 890; Polsky v State of New York, Ct Cl., May 31, 2000, Read, P.J., Claim No. 95936, Motion No. M-61265). Here, in the Court of Claims the New York District has a larger calendar than the Binghamton District. More importantly, looking beyond the bare numbers, is the additional and significant factor that the Court of Claims New York District suffered a total destruction of their facilities at 5 World Trade Center due to the tragic events of September 11, 2001.

In sum, in reviewing and balancing all these factors, this Court will exercise its discretion and deny Claimant's request for a change of venue.

Accordingly, for the reasons stated above, it is ordered that Claimant's motion for a change of venue, Motion No. M-64518, is DENIED.

March 14, 2002
Binghamton, New York

Judge of the Court of Claims

[1] It appears that Claimants reference to an "Amended Claim" was in error since there is no original Claim to amend on file with the Clerk of the Court.
[2]"Claimant" will refer solely to Bert Rosenthal inasmuch as the claim of Honey S. Rosenthal is derivative in nature.