New York State Court of Claims

New York State Court of Claims

FLOWERS v. THE STATE OF NEW YORK , #2004-028-537, Claim No. 100648-A, Motion No. M-67830


Synopsis


Claimant's application for change of venue is denied.


Case Information

UID:
2004-028-537
Claimant(s):
RICHARD FLOWERS, #76-A-2565
Claimant short name:
FLOWERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100648-A
Motion number(s):
M-67830
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
RICHARD FLOWERS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 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 in venue:

1) Notice of Motion and Supporting Affidavit of Richard Flowers filed December 26, 2003 (Flower Affidavit)

2) Affirmation in Opposition of Assistant Attorney General Joel L. Marmelstein filed January 15, 2004 with annexed Exhibit A. (Marmelstein Affirmation)


3) Reply Affidavit of Richard Flowers filed January 29, 2004 with

annexed Exhibit A. (Reply Affidavit)


Filed Papers: Claim filed July 2, 1999 and Verified Answer filed July 23, 1999.


Claimant seeks a change of venue moving the instant Claim from Albany to New York City [1] citing his failing health and poor financial condition. The Defendant opposes the application citing, inter alia, a lack of supporting documentation (Marmelstein Affirmation ¶ 3) and the inconvenience of witnesses (id. ¶ 5). In reply, Claimant has provided documentation that he is resident in a nursing home in the Bronx, New York.

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 Utica 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).
Upon consideration of the papers submitted, the Court finds that Claimant has failed to satisfy his burden of proof. The reason for Claimant's presence in the nursing home is unexplained and the gravity of any medical condition is belied by his letter sent to the Attorney General (Marmelstein Affirmation, Exhibit A). Moreover, it appears the only witness who would find the New York District convenient is the Claimant.

Accordingly, Motion No. M-67830 shall be and hereby is denied.


June 10, 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 city (see 22 NYCRR 206.4), such that any venue change will be by district and not by city. The Court further notes the Claim is presently venued in the Utica District.