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 [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 ). 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 [citation
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 ; Richards v State of New
York, 281 App Div 947 ). CPLR 510  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  and the
motion is directed to the Court's discretion (O'Brien v Vassar Bros.
Hosp., 207 AD2d 169, 171 ). 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 ; see also,
Messinger v Festa, 94 AD2d 792 ). 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 ).
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.