New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2003-018-235, Claim No. 105792, Motion Nos. M-66574, CM-66696


Claimant's motion for a change of venue is denied. The Court denies defendant's motion to sever the dental malpractice and slip and fall causes of action. The Court partially grants defendant's motion to bifurcate the liability and damages portion of the slip and fall cause of action. The Court does not have subject matter jurisdiction to impose damages for a violation of the Federal Constitution, nor has claimant met the criteria for a viable State Constitutional claim, and therefore, defendant's request to dismiss that portion of the claim is granted.

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 of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant brings a motion to change the place of trial pursuant to CPLR 510(3). Defendant opposes the relief and cross-moves for an order pursuant to CPLR 603 severing the slip and fall cause of action from the dental malpractice claims; for an order bifurcating the liability and damage portion of the cause of action for the slip and fall; for an order setting a discovery schedule; for an order dismissing a portion of claimant's claim seeking relief under the Eighth Amendment of the United States Constitution; and for an Order directing claimant to serve all future papers on the assistant attorney general assigned to this case. Claimant opposes defendant's request for relief.

The claim contains three causes of action based upon four separate incidents, which occurred while claimant was an inmate at the Ogdensburg Correctional Facility. Claimant seeks damages for defendant's alleged failure to properly treat the claimant's broken teeth on January 25, January 31 and April 16, 2000. There is also a cause of action for injuries claimant allegedly sustained when he slipped and fell in the gymnasium at the correctional facility on June 17, 2000. The current venue is in the Utica District, where the claim arose.

The basis for claimant's motion is that he has now been released from the correctional facility and lives in New York City, where he requests the trial be moved to accommodate his witnesses, specifically Dr. J. Mingching
, the dentist who treated him, at the American Dental Center. Claimant also asserts that he needs to call certain expert witnesses to support the injuries he sustained for the portion of his claim arising from the slip and fall; specifically, Dr. Q. Gary Fang, Staff Psychiatrist at the Veteran's Administration New York Harbor Healthcare System, and Dr. Patrick Fazzari, at North General Hospital.
The Court can, upon motion, change the place of trial of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change" (CPLR 510[3]). It is the burden of the party seeking the change of venue to supply the names, addresses and occupations of the witnesses whose convenience it is alleged will be affected; the specifics of each proposed witness' testimony, which must be "necessary and material" and evidence that these witnesses have been contacted and are willing to testify
(Boral v Clarkson University, 270 AD2d 776, 777; Stainbrook v Colleges of Senecas, 237 AD2d 865, 865; Andros v Roderick, 162 AD2d 813, 814). Evidence of the relative court calendars in the counties involved in the motion is also a factor to be considered, although not controlling (Stratton v Dueppengiesser, 281 AD2d 991). A motion for a change of venue is left to the sound discretion of the Court (Blasch v Chrysler Motors Corp., 84 AD2d 894).
Claimant has failed to meet the criteria necessary for the Court to change the venue of this claim. Specifically, he has failed to set forth the substantive grounds for the doctors' testimony; and more importantly, has not indicated that any of these physicians have been contacted regarding their availability and willingness to testify. It appears from the documents submitted that only Dr. J. Mingching at the American Dental Center, who actually treated claimant, is "material and necessary." The other two doctors are expert witnesses. The convenience of expert witnesses is not a factor which is dispositive on a motion for a change in venue (
Katz v Goodyear Tire & Rubber, Co., 116 AD2d 506, 507; Palmer v Chrysler Leasing Corp., 24 AD2d 820). Moreover, the New York City District of this Court has a significantly heavier caseload than the Utica District.
Keeping the action in its current venue need not be as problematic as claimant suggests. Actions in the Court of Claims are not tried before a jury making these cases more amenable to videotaped testimony. Often the parties and counsel arrange to take the testimony of physicians on videotape, or by deposition, thereby eliminating the need for the doctor to actually come into Court to testify. This very well may be a viable option that could be arranged with defendant's counsel thereby eliminating the need for claimant's witnesses to travel.

Turning to defendant's motion, defendant seeks severance of the dental malpractice and slip and fall causes of action. The convenience of scheduling witnesses is the only reason defendant cites for seeking severance. Since there is no jury, the timing of witnesses can be arranged quite accurately, minimizing idle time. Given claimant's opposition to severance, the Court denies defendant's request (
See, Gittino v LCA Vision, Inc. 301 AD2d 847).
The defendant also seeks to bifurcate the liability and damages portion of the slip and fall cause of action. Bifurcating the liability and damages portion of this claim would eliminate the need for claimant to call his two expert witnesses until a decision on liability is determined. Accordingly, the Court will bifurcate the liability and damage portion of the slip and fall matter. Defendant also seeks an order dismissing the portion of the claim which seeks relief under the Eighth Amendment of the United States Constitution. This is an issue which was previously addressed by a motion to dismiss a prior claim in which claimant raised a similar request for relief (s
ee, Jones v State of New York, Ct Cl, unpublished decision of J. Fitzpatrick, filed April 18, 2001, Cl No. 102461, Motion Nos. M-62300, M-62272, CM-62440)[1] The Court determined, at that time, that it does not have subject matter jurisdiction to impose damages for a violation of the Federal Constitution (Zagarella v State of New York, 149 AD2d 503). Nor has claimant met the criteria set forth in Brown v State of New York, 89 NY2d 172, for a viable State Constitutional Tort claim. Thus, to the extent claimant seeks relief for a violation of his Federal or State constitutional rights for the failure to properly care for his broken teeth, those allegations are dismissed. Claimant is collaterally estopped from raising the issue again.
In accordance with CPLR Article 31 and Rules for the Court of Claims § 206.10, since claimant is no longer incarcerated, all discovery should be completed by October 15, 2003. Claimant must file a note of issue and certificate of readiness by November 5, 2003.

Finally, claimant has had an action pending in this Court since May 2000 (see, Claim Number 102461). Mr. Marmelstein has been the assistant attorney general assigned to claimant's cases since the beginning. Despite this, claimant has repeatedly served the attorney general's office in New York City which slows down defendant's response time. Claimant presents no reason why service cannot be made upon the assigned assistant attorney general. Accordingly, claimant is directed to serve all future papers and correspondence regarding this pending claim upon Assistant Attorney General Joel Marmelstein, at 207 Genesee Street, Room 508, Utica, New York 13501. Should claimant fail to do so, the defendant will be allowed to add two weeks to any statutory or Court ruled response time which, of course, will only serve to delay claimant's day in Court.

Therefore, claimant's motion is DENIED and Defendant's motion is GRANTED in part and DENIED in part in accordance with the foregoing.

July 10, 2003
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion................................................................................................1

Affidavit of Charles Jones, pro se, in support....................................................2

Notice of Cross-Motion......................................................................................3

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in support of cross motion and in opposition to motion

with exhibits attached thereto.................................................................4

Reply affidavit of Charles Jones, pro se, in opposition to defendant's


[1]Most unpublished decisions of the Court of Claims are available on the internet at