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). 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
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
281 AD2d 991). A motion for a change of venue is left to
the sound discretion of the Court (Blasch v Chrysler Motors Corp.
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
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
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,
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
AD2d 503). Nor has claimant met the criteria set forth in Brown v State of
, 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.
The Court has considered the following documents in deciding this motion:
Affidavit of Charles Jones, pro se, in
Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney
General, in support of cross motion and in opposition to motion
with exhibits attached
Reply affidavit of Charles Jones, pro se, in opposition to