New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2004-018-303, Claim No. 101924-A, Motion No. M-67256


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
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a motion[1] for a change of venue pursuant to CPLR 510(3) requesting that

the claim be transferred from the Utica District to the New York City District for trial. Claimant also requests an order staying discovery and for a protective order pursuant to CPLR 3103. Defendant opposes the requested relief.

There is a long history involving this claim and a related claim which is also pending in the Utica District. A relatively brief synopsis follows:

Claimant served three notices of intention upon the Attorney General. The first notice of intention, which was served on February 7, 2000, asserted 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. He thereafter received improper dental care at the facility, and specifically, at the 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 in the gymnasium at OCF on June 17, 2000. Claimant filed a claim (Claim No. 102461) asserting causes of action for January 25, 31, and April 16, 2000 incidents. That claim was later amended to include the June 17, 2000 incident, as well, and served on 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 No. M-62272). Defendant made a motion to dismiss the claim or for summary judgment (M-62300), and claimant made a cross-motion for summary judgment (CM- 62440). In one Decision and Order, the Court 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 brought two new motions (M-63420,CM-64103) to dismiss the amended claim. Claimant cross-moved for summary judgment (CM-63515) and for an order to preclude, compel and for sanctions (M-64075). The Court decided those motions together and dismissed Claim No.102461 by a Decision and Order filed February 28, 2002 (M-63420, M-64075, CM-63515, CM-64103).

After dismissal of that claim, on March 22, 2002, claimant filed a claim including causes of action for the January 25, 31, April 16, and June 17, 2000 incidents (Claim No. 105792). Defendant brought a motion to dismiss (M-65003) this new claim. The Court partially granted defendant's motion by Decision and Order filed June 11, 2003, which dismissed 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. The balance of that claim (Claim No. 105792), which now includes only the causes of action for the April 16 and June 17, 2000 incidents, is still pending in the Utica District. Claimant brought a cross-motion (CM-65106) for permission to treat the notice of intention (giving notice of the January 25 and 31 incidents) which was served on February 7, 2000 as the claim. The Court granted claimant's cross-motion. It is that notice of intention which the Court permitted to be treated as the claim (Claim No. 101924-A), which was amended to include a demand for damages. It is this amended claim which is the subject of this motion. An Answer and discovery demands were filed in relation to this amended claim on August 1, 2003.

With that background, I turn now to claimant's current motion.

The basis for claimant's motion seeking a change of venue to New York City is to accommodate his witnesses, specifically the dentist who treated him, Dr. J. Mingching, at the American Dental Center, located at 241 West 30th Street, New York, New York. Claimant argues that in order to prove the standard of care and defendant's departure from acceptable treatment, he will need the testimony of Dr. Mingching. Claimant asserts that Dr. Mingching is willing to testify at trial, but is not willing to travel to a "remote part of the State to give testimony" to the detriment of her dental practice and other patients (Jones' affidavit ¶ 9). Claimant also asserts that Dr. Mingching will testify that the treatment of claimant's teeth by the dentists at OCF was not consistent with the standards of practice that exist within the dental industry, that the dental treatment was negligent and caused damage to claimant's teeth.

Since there are no provisions in the Court of Claims Act and Court Rules for changing the venue of an action in the Court of Claims, the CPLR applies. Pursuant to CPLR 510(3) 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."

In accordance with Rule 206.4 of the Uniform Rules for the Court of Claims, the Clerk of the Court assigns claims to one of eight districts based upon where the claim arose (see also, CPLR 506[b]). Here, the allegations in the claim arose while claimant was an inmate at OCF, and accordingly, the Clerk appropriately venued the claim 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' testimony, which must be "necessary and material," and there must be some indication that these witnesses have been contacted and are willing to testify (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). Some evidence concerning the calendar 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. Claimant has only cursorily set forth the substance of Dr. Mingching's testimony, who will, apparently, provide both expert and factual testimony. Although claimant asserts that she is willing to testify in New York City, he has not provided a statement from the witness (see, Bolling v Metropolitan Suburan Bus Authority, 205 AD2d 724; Strosberg v Kiamesha Concord, Inc., 26 AD2d 723; Hoffman v State of New York, Ct Cl, Collins, J., signed September 24, 2001, Claim No. 103815, Motion No. M-63623, UID# 2001-015-179). Claimant, also, has not addressed the comparative congestion of claims between the Utica and New York City Districts; however, the information is available to the Court. For Term 12 of 2003, the New York District had 1,190 cases pending with four judges having assignments, while the Utica District had 287 cases pending with two judges having assignments (cf, Searle v Suburban Propane Div. of Quantum Chemical Corp., 229 AD2d 988). The efficient administration of the Court, the fact that, given the normal course of events, claimant will likely receive an earlier trial in the Utica District than in the New York District, and the fact that there are alternatives to requiring his treating dentist to travel to Utica for the trial have weighed in this Court's decision to deny the motion (Poolet v State of New York, 56 Misc 2d 933, 934-935; Polsky v State of New York, Ct Cl, Read, J., signed May 31, 2000, Claim No. 95936, Motion No. M-61265, UID # 2000-001-017). Since actions in the Court of Claims are not tried before a jury, these cases are more amenable to videotaped testimony. Often the parties and counsel arrange to take the testimony of witnesses, such as 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 Dr. Mingching to travel at all. Additionally, claimant's related claim (Claim No. 105792) is also venued in the Utica District and may be heard together with this claim, minimizing costs for both parties and furthering judicial efficiency.

Turning to claimant's motion for a stay of discovery and a protective order, disclosure of the matter in dispute is automatically suspended once an application for a protective order has been made, eliminating any need for an order staying discovery (CPLR 3103[b]). It is claimant's position that the Court should issue a protective order to prevent defendant's harassing discovery requests. Claimant argues that he has provided most of the requested information in relation to his other pending claim (Claim No. 105792), and that to have to provide the same information again is unnecessary and harassing. Claimant did not provide the discovery demands that he feels warrant a protective order; however, defendant has submitted the demands served. Defendant has served a Demand for a Verified Bill of Particulars; a Demand for Names and Addresses of Witnesses; a Demand for Medical Authorizations; Notice for Discovery and Inspection of Collateral Sources; Notice of Examination Before Trial; Notice to Submit to Physical Examination; and Demand for Other Action and/or Settlement (Marmelstein Affirmation, Exhibits D and E). These are standard discovery demands seeking information which is subject to disclosure. Although claimant may have provided responses to these same requests for Claim Number 105792, this claim is now separate, and it is appropriate for defendant to request the same information separately for this claim.

Given the back and forth bantering and extensive motion practice, an expedient trial date will be the most effective relief. Accordingly, all disclosure for this claim must be completed by June 30, 2004 and a Note of Issue and Certificate of Readiness should be filed by claimant with the Clerk of the Court in accordance with Rule 206.12 of the Uniform Rules for the Court of Claims by July 1, 2004.

Claimant's motion is DENIED.

June 3, 2004
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, in support.................................................................2

Affirmation of Joel L. Marmelstein, Assistant Attorney General, in

opposition with exhibits attached thereto................................................3

[1]This claim and motion were transferred from the Honorable Richard Sise's calendar, due to the prior assignment of claimant's other claim to my calendar.