New York State Court of Claims

New York State Court of Claims

GARNER v. THE STATE OF NEW YORK, #2007-041-049, Claim No. 110735, Motion No. M-74046


Synopsis


Motion for change of venue denied where proponent fails to show that venue is either improper or that the convenience of material witnesses and the ends of justice will be promoted by the change.

Case Information

UID:
2007-041-049
Claimant(s):
ELLIOTT GARNER
Claimant short name:
GARNER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110735
Motion number(s):
M-74046
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
ELLIOTT GARNER, PRO SE
Defendant’s attorney:
NONE
Third-party defendant’s attorney:

Signature date:
October 30, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for an order pursuant to CPLR 511 to change venue of this action to one of the five boroughs of New York City since claimant allegedly “cannot leave the five (5) boroughs of New York City and travel to Albany, New York for the purposes of attending upcoming Pre-Trial and Trial in said County.” Claimant appears to be arguing that the terms of his parole prohibit his travel outside of the five New York City boroughs. However, the “Certificate of Release to Parole Supervision,” attached to the motion papers, only prohibits claimant from leaving the “State of New York or any other State to which I am released or transferred, or any area defined in writing by my Parole Officer without permission.” Claimant offers no proof that his parole officer has limited claimant’s ability to travel within the State of New York.

Even if claimant was prohibited from leaving the five boroughs of New York City by the terms of his parole the motion would be denied. Claimant has not shown that venue is improper as required for relief under CPLR 511, nor has he shown that a change of venue is required for “the convenience of material witnesses and [that] the ends of justice will be promoted by the change” as required by CPLR 510 (3).

In order to prevail on a change of venue motion made pursuant to CPLR 510 (3), the proponent must “supply the names, addresses and occupations of the witnesses whose convenience [proponent] claims will be affected, indicate that the prospective witnesses have been contacted and are willing to testify on [his] behalf and specify the substance of each witness’s testimony, which must be necessary and material” (Andros v Roderick, 162 AD2d 813, 814 [3d Dept 1990]; see Heiss v Moose, 16 AD3d 765 [3d Dept 2005]). Claimant has made no such showing.

Claimant’s own “convenience carries little if any weight on a motion pursuant to CPLR 510 (3)” (Mroz v Ace Auto Body & Towing, Ltd., 307 AD2d 403, 404 [3d Dept 2003]).

The pre-trial proceedings referred to by claimant will primarily be conducted by mail and telephone, with the exception of possible depositions. When, and if, it becomes necessary to address claimant’s alleged inability to leave the five boroughs of New York City, claimant may renew his request, if no alternative means of proceeding, such as obtaining permission from his parole officer, is shown to be available.

The claimant’s motion to change venue is denied.

October 30, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Notice of Motion and exhibit, filed October 3, 2007.