New York State Court of Claims

New York State Court of Claims

RECTOR TRINITY ASSOCIATES v. THE STATE OF NEW YORK, #2003-028-573, Claim No. 107695, Motion No. M-67067


Synopsis


Case Information

UID:
2003-028-573
Claimant(s):
RECTOR TRINITY ASSOCIATES, LLC
Claimant short name:
RECTOR TRINITY ASSOCIATES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107695
Motion number(s):
M-67067
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MEISTER SEELIG & FEIN LLPBY: Mitchell S. Schuster, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Ellen S. Mendelson, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 24, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion for a change of venue:

1) Notice of Motion and Supporting Affidavit of Ofer Shaul filed July 7, 2003 (Shaul Affidavit) with annexed Exhibts A-D


2) Claimant's Memorandum of Law

3) Affirmation in Response of Assistant Attorney General Ellen S. Mendelson (Mendelson Affirmation) filed August 1, 2003.


Filed Papers: Claim and Verified Answer.

Claimant seeks a change of venue moving the instant Claim from Albany County to New York County[1] citing, inter alia, the situs of leasehold as being in New York County and that its witnesses are employed and live in the greater New York metropolitan area (Shaul Affidavit).

The Defendant takes no position on the application, noting that I maintain a calendar in both the Albany District and the New York District. Consistent with the Clerk of the Court's practice the claim was assigned in accordance with CPLR 506 (b), and as such, this claim was properly venued in the Albany district.

There are no provisions in the Court of Claims Act governing motions for change of venue; consequently, the relevant provisions of the CPLR apply (see Court of Claims Act § 9 [9]; Richards v State of New York, 281 App Div 947; Poolet v State of New York, 56 Misc 2d 933). CPLR 510 (3) provides for a discretionary change of venue where "the convenience of material witnesses and the ends of justice will be promoted by the change". Claimant, seeking the change of venue, bears the burden of proof (see Andros v Roderick, 162 AD2d 813, 814). In order to demonstrate that venue should be changed, the moving party must "supply the names, addresses and occupations of the witnesses whose convenience he claims will be affected, indicate that the prospective witnesses have been contacted and are willing to testify on his behalf and specify the substance of each witness's testimony, which must be necessary and material" (Stainbrook v Colleges of Senecas, 237 AD2d 865, quoting Andros v Roderick, supra at 814).

The Court finds Claimant has satisfied its burden and notes that the Assistant Attorney General defending this action is from the Manhattan office of the Attorney General, which in the Court's view, lends credence to Claimant's application.

Inasmuch as this Court maintains a New York calendar, Claimant's application is GRANTED and the Clerk of the Court is directed to transfer the Claim to the undersigned's New York District calendar.

The parties are directed to appear at a preliminary conference to be held on December 17, 2003 at 10:00 a.m. in the Court of Claims, 26 Broadway, 10th floor, New York, New York.




October 24, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court notes that the Court of Claims is organized by district, not county (see, 22 NYCRR 206.4), such that any venue change will be by district and not county.