New York State Court of Claims

New York State Court of Claims

V. STATE OF NEW YORK, #2004-018-302, Claim Nos. 105792, 101924-A, Motion Nos. M-67753, M-67813, M-67899, M-67250, CM-67788


Synopsis


Case Information

UID:
2004-018-302
Claimant(s):
CHARLES JONES
Claimant short name:

Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105792, 101924-A
Motion number(s):
M-67753, M-67813, M-67899, M-67250
Cross-motion number(s):
CM-67788
Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CHARLES JONESPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 27, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Court has five motions pending before it, arising from two related claims which

accrued during claimant's confinement at Ogdensburg Correctional Facility. Claimant has since been released and is residing in New York City. There is a long and inextricable history with these claims, which must be set forth in order to provide some context within which to view these current motions.

Claimant served three notices of intention upon the Attorney General. The first notice of intention which was served on February 7, 2000 asserting that on January 25, 2000, while an inmate at Ogdensburg Correctional Facility (hereinafter OCF) claimant broke a tooth when he bit into a clump of uncooked rice, and thereafter received improper dental care at the facility dental clinic on January 31, 2000. The second notice of intention was served on May 15, 2000, asserting that claimant suffered another broken tooth on April 16, 2000, as a result of the food preparation at OCF, and that he again failed to receive proper dental care at the facility. The last notice of intention was served on August 15, 2000, alleging that the State was negligent for injuries claimant suffered when he slipped and fell on June 17, 2000 in the gymnasium at OCF. Claimant filed a claim (Claim No. 102461) asserting causes of action for the January 25, 31, and the April 16, 2000 incidents. That claim was later amended to include the June 17, 2000 incident as well, and served upon defendant who rejected the amended claim. Claimant then filed a motion for a default judgment and/or an order compelling defendant to accept claimant's amended claim (Motion Number M-62272). Defendant moved to dismiss the claim or for summary judgment (M-62300), and claimant made a cross-motion for summary judgment (CM- 62440). The Court, in one Decision and Order, denied claimant's motion for a default judgment, directed defendant to interpose an answer to the amended claim, partially granted defendant's motion to dismiss, dismissing the constitutional tort cause of action, and denied claimant's motion for summary judgment. That Decision and Order was signed on March 21, 2001. Thereafter, defendant filed two motions to dismiss (M-63420, CM-64103) that amended claim. Claimant filed two motions, one for summary judgment (CM-63515) and one to preclude, compel, and for sanctions (M-64075). The Court decided those motions together and dismissed claim number 102461 by Decision and Order filed February 28, 2002 (M-63420, M-64075, CM-63515, CM-64103).

Claimant then filed Claim No. 105792, the pending claim, on March 22, 2002, including causes of action for the January 25 and 31, April 16, and June 17, 2000 incidents. Defendant brought a motion to dismiss this claim (M-65003), and the Court, in a Decision and Order filed June 11, 2003, partially granted defendant's motion, dismissing the causes of action relating to the January 25 and 31, 2000 incidents, as the claim was untimely served and filed as to the causes of action arising from those incidents. In the same Decision and Order, the Court granted claimant's cross-motion (CM-65106) for permission to treat the notice of intention, (giving notice of the January 25 and 31, 2000 incidents which was served on February 7, 2000), as the claim. The notice of intention that is being treated as the claim (Claim No. 101924-A), was amended to include a demand for damages, the amended claim was filed on July 14, 2003. An Answer and discovery demands were filed in relation to that claim on August 1, 2003.

Within that context the Court will now address the pending motions.
Claim Number 105792, Motion Number M-67250
Claimant brought a motion for a change of venue for claim number 105792 pursuant to CPLR 510(3), which the Court denied by Decision and Order filed August 4, 2003 (M-66574). Claimant now brings a motion seeking reargument of that change of venue motion. Defendant opposes the requested relief.

On a motion to reargue, CPLR 2221(d) provides that the motion shall be based upon matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion, "but shall not include any matters of fact not offered on the prior motion." Since claimant's motion papers contain no new facts which were unavailable to claimant at the time the change of venue motion was made, this motion is correctly labeled one for reargument (Nulman v Hall, 115 AD2d 837, 838).

Claimant's motion to change the venue was denied because he failed to provide the necessary requirements for changing venue; specifically, he failed to set forth the substantive grounds for the witnesses' testimony and did not indicate that the witnesses had been contacted and were willing to testify. Additionally, the Court considered that the caseload for the New York District is significantly heavier than the caseload in the Utica District.

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's testimony, which must be "necessary and material," and there must be some indication that these witnesses have been contacted and are willing to testify (see, O'Brien v Vassar Bros. Hosp., 207 AD2d 169; Boral v Clarkson University, 270 AD2d 776, 777; Stainbrook v Colleges of Senecas, 237 AD2d 865; Andros v Roderick, 162 AD2d 813, 814; Stratton v Dueppengiesser, 281 AD2d 991).

Claimant's current application for reargument takes issue with the Court's determination that the testimony of Dr. Fang and Dr. Fazzari were not considered material and necessary, as they were described in claimant's motion more as expert witnesses than treating physicians. Claimant now asserts that these doctors, physiatrists, are also his treating physicians. Despite the clarification the Court denies claimant's request for reargument and adheres to its original determination that the interests of justice do not warrant a change of venue to the New York District. This action was appropriately venued in the Utica District, (Uniform Rules for the Court of Claims §206.4; CPLR 506[b][1]) which has significantly fewer pending claims than the New York District. Moreover, the Court, in its prior Decision and Order (M-66574, CM-66696, filed August 4, 2003) bifurcated the liability and damages portion of the slip and fall cause of action, thereby eliminating the need for claimant to call Dr. Fang or Dr. Fazzari for the liability trial, as their testimony relates to damages. Only if liability is established, will their testimony be necessary. Additionally, despite claimant's attestation to the contrary, videotaped testimony is a viable and commonly used option for providing the testimony of professionals in a Court of Claims action, which would eliminate the need for any of claimant's witnesses to travel to Utica for trial.
Claimant's motion for reargument is DENIED.
Claim No. 105792

Motion No. M-67753; Cross-Motion No. CM-67788; Motion No. M-67813
Claimant makes a motion for a default judgment against the State pursuant to CPLR 3215 on the ground that defendant failed to answer claim number 105792. Defendant, in opposition, sets forth in detail the extensive history with claimant's claims and motions and pleads confusion over whether or not an answer should be interposed. Defendant goes on to point out that the State has vigorously defended the pending claims, has brought motions seeking independent relief and participated in an evidentiary hearing. Defendant asserts that claimant will suffer no prejudice and that this case should be decided on its merits. Defendant, accordingly, cross-moves for an order permitting it to interpose an answer. In response, claimant moved seeking an order interposing sanctions against Assistant Attorney General Marmelstein.

The decision of whether to grant a default judgment is discretionary. Although defendant admittedly failed to interpose an answer to the remaining causes of action in Claim No.105792, the Court declines to enter a default judgment. Defendant has set forth a reasonable explanation for its default, given the confusing procedural history of the pending claims, and claimant will not be prejudiced by the Court permitting defendant to interpose its answer. Since these are some of the same factors which are considered in determining whether to vacate a default judgment once it is entered, the Court will not enter judgment in the first instance. (see CPLR 5015(a); Rooney v Webb Avenue Associates, Ltd., 1 AD3d 246; Linzy v Christa Const. Inc., 238 AD2d 936; Photovision International, Inc. v Thayer, 235 AD2d 467; Coakley v Gabel, 158 AD2d 954, appeal dismissed in part denied in part 76 NY2d 931; Johnson v Gumer, 94 AD2d 956). There is strong public policy favoring decisions on the merits, instead of judgments resulting from procedurals errors (Photovision International, Inc. v Thayer, 235 AD2d 467).

The Court also denies claimant's request for sanctions against Assistant Attorney General Marmelstein. Mr. Marmelstein's conduct in defending the pending claims does not, in any way, warrant sanctions.

Accordingly, Claimant's motion for a default judgment and sanctions is DENIED. Defendant's cross-motion to permit the filing and service of an answer to Claim No.105792 is GRANTED. Defendant is directed to file and serve an answer within 30 days of the date this Decision and Order is filed with the Clerk of the Court.

Claim Number 101924-A, Motion No. M-67899
Claimant makes a motion requesting sanctions against the Assistant Attorney General assigned to this claim, and seeks costs against the defendant for the frivolous motion practice allegedly engaged to solely harass claimant. Claimant asserts that defendant has made a "Motion to Compel" for claimant's alleged failure to provide discovery responses. However, defendant's motion was never calendared in accordance with the Uniform Rules for the Court of Claims §206.8(b). As a result, the Court denies claimant's motion as moot.


April 27, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



The Court has considered the following documents in deciding these motions:


Claim Number 105792, Motion Number M-67250


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


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


Affirmation in opposition of Joel L. Marmelstein, Assistant Attorney

General...................................................................................................3


Claim No. 105792, Motion No. M-67753; Cross-Motion No. CM- 67788;


Notice of Motion................................................................................................4

Affidavit of Charles Jones, in support, with exhibits attached thereto.....................................................................................................5


Affirmation in opposition of Joel L. Marmelstein, Assistant Attorney

General with exhibits attached thereto...................................................6

Notice of Cross-Motion......................................................................................7


Affirmation of Joel L. Marmelstein, in support of cross-motion

with exhibits attached thereto...............................................................8


Claim No. 105792, Motion No. M-67813


Notice of Motion................................................................................................9

Affidavit of Charles Jones, in support of motion and in opposition

to CM-67788, with exhibits attached thereto........................................10


Affirmation in opposition of Joel L. Marmelstein, Assistant Attorney

General with exhibits attached thereto...................................................11


Claim Number 101924-A, Motion No. M-67899


Notice of Motion.................................................................................................12

Affidavit of Charles Jones, in support with exhibits attached thereto.....................................................................................................13


Affirmation in opposition of Joel L. Marmelstein, Assistant Attorney

General with exhibits attached thereto...................................................14


Affirmation of Joel L. Marmelstein, filed January 6, 2004................................15


[1]It is the Chief Clerk's practice to assign claims in accordance with CPLR 506(b), which provides, in relevant part, "that proceedings against a body or officer are to be commenced ‘where the respondent made the determination complained of ... or where the material events otherwise took place or where the principal office of the respondent is located'" (Fleurival v State of New York, Ct. Cl., unpublished decision of Read, J., signed January 8, 2001, Cl. # 103236, M-62722, UID #2001-001-004).