New York State Court of Claims

New York State Court of Claims

Finizia v. THE STATE OF NEW YORK, #2006-044-500, Claim No. 111265, Motion No. M-72065


Synopsis


Claimant’s failure to set forth detailed information concerning his proposed witnesses and how they would potentially be inconvenienced is fatal to his motion to change venue.

Case Information

UID:
2006-044-500
Claimant(s):
EDWIN FINIZIA
Claimant short name:
Finizia
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111265
Motion number(s):
M-72065
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
ZWIEBEL, BRODY, GOLD & FAIRBANKS, L.L.P. BY: Jeffrey M. Brody, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2006
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant’s motion for a change of venue pursuant to CPLR 510 (3):

(1) Notice of Motion filed June 21, 2006 and Affirmation in Support of Jeffrey M. Brody, Esq. with annexed Exhibits A through F;

(2) Affirmation in Opposition of Geoffrey B. Rossi, AAG filed July 31, 2006.


Filed papers: Claim filed August 18, 2005; Verified Answer filed September 26, 2005.
Claimant moves for a change in venue of this action from Binghamton to White Plains, citing the location of his “physician(s),” as well as his physical limitations and his current residence in Dutchess County. Defendant opposes the motion on the ground that it is premature.

In March 2003, claimant was working in the chapel at the Sullivan County Correctional Facility when he fell from an elevated work area. Claimant commenced this action to recover for personal injuries allegedly received in the fall. The claim accrued in Sullivan County and is properly venued in the Binghamton District (see Uniform Rules for Ct Cl [22 NYCRR] § 206.4). Claimant now resides at Green Haven Correctional Facility in Dutchess County, and seeks to have venue changed to the White Plains District.

Because the Court of Claims Act does not contain provisions for change of venue motions, the court must apply CPLR article 5 (see Court of Claims Act § 9 [9]). CPLR 510 (3) provides that the court may change the place of trial where “the convenience of material witnesses and the ends of justice will be promoted by the change”. The party seeking such a discretionary change of venue “bears the burden of demonstrating that a change is appropriate and, generally, must support the application with detailed relevant information establishing that the convenience of the nonparty witnesses would be enhanced by the change” (Singh v Catamount Dev. Corp., 306 AD2d 738). This 'detailed information' must include the names, addresses and occupations of the proposed witnesses, as well as both an indication that they are willing to testify and the substance of their purported testimony (see Andros v Roderick, 162 AD2d 813, 814). There must also be a showing of the manner in which the witnesses will be inconvenienced (see O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 173).

The Court finds that claimant has failed to meet his burden on this change of venue motion. Although counsel avers that claimant’s “most significant treating orthopedists(s)” [sic] will testify at trial, claimant's motion papers fail to include the names, addresses and substance of the testimony.[1] Claimant likewise fails to set forth the proposed testimony of his fellow inmate, Dennis McCleavey, the only eyewitness to the accident. Additionally, claimant does not explain how his “physician(s)” or McCleavey would be inconvenienced if forced to travel to the Binghamton District for trial. While claimant and McCleavey currently reside in Green Haven Correctional Facility, the Court cannot be certain that either will reside at that facility at the time of trial. The Court acknowledges that it may be difficult for claimant to travel from Dutchess County to Binghamton, given his confinement to a wheelchair. However, this action is in the early stages of litigation. The claimant’s failure to set forth the necessary detailed information concerning the non-party witnesses, and the uncertainty of claimant’s (and McCleavey’s) physical location at the time of trial, are fatal to his motion.
The motion for change of venue is DENIED.
September 5, 2006
Binghamton, New York
HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims

[1]. Counsel for claimant also “avers”, upon information and belief, that employees of the Department of Corrections who were working at Sullivan Correctional Facility will be called as additional witnesses. Again, claimant does not provide a list of the witnesses’ names or purported testimony.