New York State Court of Claims

New York State Court of Claims

KIRBY v. THE STATE OF NEW YORK, #2007-015-152, Claim No. 110566, Motion No. M-72911


Motion for a change of venue was granted based on the fact that claimant suffers from a lift-threatening heart condition which prevents his ability to travel.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Sonkin, Fifer & GershonBy: Howard Fifer, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 22, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for a change of venue from the Albany District to the New York District is granted. 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 [1953]). CPLR 510(3) states 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 the change of venue bears the burden of proof (Andros v Roderick, 162 AD2d 813 [1990]) and the motion is directed to the Court's discretion (O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171 [1995]). "While the inconvenience of a party will not normally be considered, an exception arises when the inconvenience relates to a party's health" (Messinger v Festa, 94 AD2d 792 [1983])(citations omitted); see also Mavrakis v Waldbaums, Inc., 302 AD2d 501 [2003]; Zinker v Zinker, 185 AD2d 698 [1992]).

Claimant's motion in this case is based on the contention that due to a life threatening heart condition he is unable to travel to Albany for trial.[1] In support of the motion, claimant submitted an affidavit from Kurt Elias, M.D. who confirms that the claimant suffers from cardiomyopathy. Dr. Elias states "in my medical opinion, stated with a high degree of medical certainty, traveling from his residence in Manhattan to Albany would be hazardous to his health, with a very real potential for arrhythmia and/or cardiac arrest caused by the exertion of travel". The doctor also stated that while there is treatment available for symptomatic relief, the only treatment for the illness itself is a heart transplant. Hospital records submitted in support of the motion confirm that the claimant suffers from congestive heart failure and that he is on an extensive regimen of treatment for this condition. Based on the foregoing, the claimant's motion for a change of venue for the trial of this matter from the Albany District to the New York District is granted. The Clerk of the Court is directed to reassign this claim accordingly.

February 22, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 31, 2007;
  2. Affirmation of Howard Fifer dated January 31, 2007 with exhibits;
  3. Affirmation of Stephen J. Maher dated February 13, 2007 with exhibit;
  4. Reply affirmation of Howard Fifer dated February 14, 2007.

  1. [1]The trial of this action is currently scheduled for March 7, 2007.