New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2007-040-012, Claim No. 104288, Motion No. M-72885


Synopsis


Prisoner – Motion for Change of Venue Denied.

Case Information

UID:
2007-040-012
Claimant(s):
BERNARD THOMAS, #99A2204
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104288
Motion number(s):
M-72885
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Bernard Thomas, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 16, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the motion of pro se Claimant, Bernard Thomas, seeking a change of venue of the trial is denied and his request for an adjournment of the trial is granted.

The underlying Claim, which was filed in the office of the Clerk of the Court on May 16, 2001, alleges that Defendant failed to follow its own regulations with respect to screening for housing assignments, with the result that Claimant was improperly and harmfully placed in a double bunk cell at Upstate Correctional Facility in Malone.

Claimant seeks a change of venue pursuant to CPLR § 510. He asserts that he has a serious back problem which prevents him from sitting on a bus for the trip from Fishkill Correctional Facility in Beacon, where he is currently housed, to Clinton Correctional Facility in Dannemora, where the trial of the Claim is scheduled to take place.

In opposition to the motion, the State asserts that as pertinent to the instant matter, CPLR § 510(3) provides that the Court may change the place of trial of an action 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 (see Andros v Roderick, 162 AD2d 813) and must identify, among other things, the witnesses and the substance of their testimony (Stainbrook v Colleges of Senecas, 237 AD2d 865). Claimant asserts that he will be the only witness called at trial and that the change of venue is for his benefit. However, Defense counsel avers that the State intends to call at least one witness at trial and that the witness will not find a trial held at Sing Sing Correctional Facility in Ossining, as requested by Claimant, to be convenient.

The Court finds that Claimant has failed to meet his burden of proof to have the venue of the trial changed.

Defendant does not object, however, to Claimant’s request for an adjournment of the trial. Therefore, Claimant’s request for an adjournment of the trial based upon medical reasons is granted and the trial scheduled for April 17, 2007 is adjourned without date.


March 16, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Claimant’s motion for change of venue of the trial or for an adjournment of the trial:

Papers Numbered


Notice of Motion, Letter and
Exhibits Attached 1

Affirmation in Opposition 2

Filed papers: Claim and Answer