New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2004-028-508, Claim No. 108257, Motion No. M-67825


Synopsis


Case Information

UID:
2004-028-508
Claimant(s):
CARLOS RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108257
Motion number(s):
M-67825
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MITCHELL D. KESSLER, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael W. FriedmanAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 19, 2004
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 Affirmation of Mitchell D. Kessler, Esq. filed December 31, 2003 (Kessler Affirmation) with annexed Exhibts A-H


2) Letter of no opposition from Assistant Attorney General Michael W. Friedman


Filed Papers: Claim filed September 11, 2003 and Verified Answer filed October 3, 2003.


Claimant seeks a change of venue moving the instant Claim from Albany County to New York County[1] citing, inter alia, the situs of the parole revocation hearing and offices of the State Division of Parole being located in New York City and that his witnesses are employed and live in the greater New York metropolitan area (Kessler Affirmation). The Defendant does not oppose the application.

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) and must identify, inter alia, the witnesses and the substance of their testimony (Stainbrook v Colleges of Senecas, 237 AD2d 865).
Given that the Defendant does not oppose Claimant's application, the Court finds Claimant has satisfied his burden.

Inasmuch as this Court maintains a New York District 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 Court, sua sponte, amends the caption of the Claim to reflect the only proper party defendant, over which it has jurisdiction, the State of New York (see Court of Claims Act § 9).

The parties are directed to appear at a preliminary conference to be held on March 17, 2004 at 9:45 a.m. in the Courthouse, 26 Broadway, 10th floor, New York, New York.


February 19, 2004
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 by county.