New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2008-009-032, Claim No. 112489, Motion No. M-75324


Synopsis


Claimant’s motion requesting a change of venue was granted.

Case Information

UID:
2008-009-032
Claimant(s):
STEVEN SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112489
Motion number(s):
M-75324
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
SCHNEIDER, KAUFMAN & SHERMAN, P.C.
BY: Howard B. Sherman, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
November 18, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking a change of venue from the Syracuse District to the New York District.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibit 1,2

Pursuant to CPLR § 510(3), a court may change the place of trial where “the convenience of material witnesses and the ends of justice will be promoted by the change”. In such an application, the party seeking the change of venue bears the burden of proof (Andros v Roderick, 162 AD2d 813), but the ultimate decision is left to the court’s discretion (O’Brien v Vassar Bros. Hosp., 207 AD2d 169).

In his claim, claimant alleges negligent medical treatment occurring while he was in the custody of the Department of Correctional Services. Claimant alleges that this negligence commenced in 2002, when he was incarcerated at Cape Vincent Correctional Facility (Syracuse District) and continued through 2005, when he was incarcerated at Arthur Kill Correctional Facility (New York District).

In his supporting affirmation, however, claimant’s attorney states that the medical records of claimant have identified three physicians who are alleged to have been negligent in their treatment, and that all three physicians began treating claimant in 2004, when claimant was incarcerated at Arthur Kill Correctional Facility. Defendant’s attorney has identified these three physicians, who all are located in the New York City area. Additionally, all treatment and hospital records relevant to this claim are maintained either by Arthur Kill Correctional Facility or by New York City hospitals. Finally, in his Affirmation, claimant’s attorney has not described any actions of negligent medical treatment allegedly occurring at Cape Vincent Correctional Facility.

Based on this information, it appears to this Court that all material witnesses to any alleged negligent medical treatment are all located in the vicinity of New York City, and that the interests of justice would best be served if this trial was heard in the New York District.

Accordingly, it is

ORDERED, that claimant’s Motion No. M-75324 seeking a change of venue for the trial of this matter from the Syracuse District to the New York District is hereby GRANTED. The Clerk of the Court of Claims is directed to reassign this claim accordingly.


November 18, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims