New York State Court of Claims

New York State Court of Claims

STEWART v. THE STATE OF NEW YORK, #2007-015-246, Claim No. 111457, Motion No. M-73722


Claimant's motion for partial summary judgment on the issue of liability was denied. Although there was no dispute that claimant was struck with a rack used for moving tables while walking in the lobby of the State Museum the very question of negligence was a question of fact in this case. Motion for change of venue was denied with leave to renew upon medical evidence that claimant is unable 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:
Rovegno & Taylor, P.C.Robert B. Taylor, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 19, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The claimant moves for partial summary judgment on the issue of liability and for a change of venue from the Albany District to the New York District of the Court of Claims. Claimant alleges that she sustained personal injuries when she was struck by a cart loaded with tables as she was walking in the lobby of the New York State Museum and Cultural Education Center in Albany, New York on July 5, 2005. In support of her motion for summary judgment the claimant relies exclusively on the examination before trial testimony of Albert Gnidica who was pushing the cart when the incident occurred. Mr. Gnidica, an employee of the New York State Museum, testified that on the date of the incident he was moving stacking tables from the fourth floor terrace to the storage room on the first floor. Six round stacking tables measuring approximately 72 inches in diameter were placed on the cart vertically and taken via an elevator to the first floor. The cart or "rack" as Mr. Gnidica referred to it was rectangular with four posts and four wheels. Pushing the rack from behind, Mr. Gnidica exited the elevator and proceeded slowly toward the middle of the lobby. He testified that he was "carefully" watching an elderly group of people walking from left to right across the lobby floor and that as he neared the middle of the lobby the claimant "was knocked into the rack of tables I was pushing". He testified that there was no sound or warning prior to the incident and that he did not see the claimant before it occurred.

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). "Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). Thus, summary judgment is appropriate in a negligence case only if "there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiff's conduct either was not really involved . . . or was clearly of exemplary prudence in the circumstances" (Andre v Pomeroy, 35 NY2d 361, 365 [1974][citation omitted]).

While the defendant does not dispute that the claimant was struck by the rack Mr. Gnidica was pushing, questions of fact exist regarding whether the conduct of the defendant was negligent and the extent to which the conduct of either the claimant or a third party may have contributed to the accident. Accordingly, the claimant's motion for summary judgment is denied.

The Court will next address that portion of the claimant's motion requesting a change of venue. There are no provisions in the Court of Claims Act governing motions for a 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 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]). The law is clear that "[w]hile a change of venue, generally, will not be granted for the convenience of a party, such relief may be granted where the inconvenience relates to a party's health" (DeGregorio v DeGregorio, 251 AD2d 366, 367 [1998]; see also, Messinger v Festa, 94 AD2d 792 [1983]). To prevail on such a motion, however, the moving party must demonstrate by competent medical evidence his or her inability to travel (id.; see also Zinker v Zinker, 185 AD2d 698 [1992]).

Claimant's motion for a change of venue from the Albany District to the New York District was supported only by the affidavit of her daughter who avers that her mother is eighty-two years of age and suffered a stroke in February of 2006 leaving her unable to walk "great distances" without the aid of a cane or walker and unable to travel "great distances". She states that the claimant is lethargic and continually tired and that her eyesight was affected by the stroke. No competent medical evidence regarding claimant's inability to travel was submitted and the daughter's affidavit as to her mother's condition is insufficient for this purpose. Accordingly, the motion for a change of venue is denied with leave to renew upon appropriate medical evidence.

Based on the foregoing, claimant's motion for partial summary judgment is denied and her motion for a change of venue is denied with leave to renew upon appropriate medical evidence.

October 19, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 10, 2007;
  2. Affirmation of Robert B. Taylor dated July 10, 2007 with exhibit;
  3. Affidavit of Denise Wallen sworn to July 9, 2007;
  4. Affirmation of Kevan J. Acton dated August 2, 2007;
  5. Affirmation of Robert B. Taylor dated August 10, 2007 with exhibit.