New York State Court of Claims

New York State Court of Claims

LANCE v. THE STATE OF NEW YORK, #2006-032-072, Claim No. 109594, Motion No. M-71520


Synopsis



Case Information

UID:
2006-032-072
Claimant(s):
DELORES LANCE and GWENDOLYN BARNES, as CO-ADMINISTRATORS OF THE ESTATE OF DELORES MCINTOSH, Deceased
Claimant short name:
LANCE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109594
Motion number(s):
M-71520
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Raymond A. Raskin, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
August 3, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants move this Court to change the venue of this claim from the Albany District to the New York District. Defendant does not appear and oppose this relief.

Claimants filed this claim in July 2004, alleging that defendant, through its agent the Department of Parole, was negligent by failing to take parolee Anthony McIntosh into custody after he made several death threats to decedent, which decedent communicated to McIntosh's parole officer, and that defendant failed to take McIntosh into custody for violating his parole. On July 14, 2002, decedent was found dead in Brooklyn, New York, and McIntosh is presently incarcerated for causing her death. Claimants now move to change venue to the New York District, contending that is where the acts took place and the material witnesses reside.

There are no provisions in the Court of Claims Act relevant to 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). It is the practice of the Chief Clerk to assign claims in accordance with CPLR 506 (b), which provides, in relevant part, that a 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". Accordingly, this claim was properly venued in the Albany District, site of the principle office of the Department of Parole, although as a practical matter it could also have been assigned to the New York District, where the material events constituting this claim transpired.

Further, defendant has not responded to this motion and has answered the claim from the Office of the Attorney General located in New York City, suggesting to the Court that it does not oppose the requested change of venue and that it too expects to handle the action from within the New York District. Additionally, 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". Here, material witnesses, including the Kings County Medical Examiner, McIntosh's parole officer and one of the claimants, are located in New York County.

Based upon the foregoing, the Court grants claimants' motion M-71520 for a change of venue and directs the Clerk of the Court to transfer this claim in accordance with this Decision and Order.







August 3, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed April 3, 2006;

2. Affirmation of Raymond A. Raskin dated March 30, 2006.