Claimant brings a motion
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
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.