New York State Court of Claims

New York State Court of Claims

TRUMP v. THE STATE OF NEW YORK, #2008-015-113, Claim No. 115001, Motion No. M-75520


Claimant's motion for change of venue was denied.

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:
Jaspan Schlesinger Hoffman LLPBy: Steven R. Schlesinger, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Patricia M. Hingerton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 5, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Trump On The Ocean, LLC, moves for a change of venue from the Albany District to the New York District of the Court of Claims , specifically Suffolk County, pursuant to CPLR 510 (1) and (3). The claim is for monetary damages arising out of the alleged breach of a lease agreement between the claimant and the State of New York, by and through the Office of Parks, Recreation and Historic Preservation ("State Parks"), for the construction and operation of a restaurant and catering facility at Jones Beach State Park in Nassau County, New York (see defendant's Exhibit A to defendant's Exhibit C). The claim alleges that the "[s]tate has unreasonably delayed claimant in its performance of the Lease causing claimant to suffer damages in the form of lost profits, increased design costs and increased construction costs . . ." (see defendant's Exhibit A). In a "complaint" annexed to the claim and incorporated by reference therein, claimant's counsel alleges that following the execution of the lease agreement on September 25, 2006 and its approval by the State Comptroller on December 1, 2006, the newly appointed Commissioner of State Parks, Carol Ash, intentionally delayed the project by demanding design changes in the structure and interfering with the approval process for a variance from certain building code requirements. The complaint alleges the following in this regard:
"[A]fter reviewing plans containing a basement for over three years and after failing to disclose the Department of State Division of Code Enforcement as a reviewing agency, and representing it was its own permitting officer, State Parks determined that it must seek a variance from the Board of Review, thereby further delaying the progress of construction" (see complaint annexed to claim, Exhibit A to defendant's Exhibit A, ¶ 58).

* * *

"The unparalleled bureaucratic mess the State Parks and DOS made of the approval process, and the many years the redesign process will add to the time it will take to construct the Project, which will now be long past the June 14, 2010 termination date, obviously demonstrates the Commissioner's desired result of making changes to the Project where she can, including terminating the Lease altogether, notwithstanding the contractual obligations contained in the Lease" (see complaint annexed to claim, Exhibit A to defendant's Exhibit A, ¶ 101).

Claimant makes two arguments in support of its motion for a change of venue: First, that a change of venue is warranted for the convenience of material witnesses pursuant to CPLR 510 (3) and, second, that the New York District is the only proper venue for this action pursuant to CPLR 507 as it "arises out of the 'possession, use or enjoyment' of a leasehold in real property" (claimant's counsel’s affirmation in support of motion, ¶ 18) .

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]; Award Incentives v State of New York, 4 AD2d 985 [1957]; 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]). To succeed on a motion for a change of venue pursuant to CPLR 510 (3) the proponent of the motion "must assert the names and addresses of the witnesses, the substance and materiality of their expected testimony on the issues presented, their willingness to testify and the manner in which they will be inconvenienced by a trial in the venue where the action was commenced" (Frontier Ins. Co. in Rehabilitation v Big Apple Roofing Co., Inc., 50 AD3d 1239 [2008]; see also Stainbrook v Colleges of Senecas, 237 AD2d 865 [1997]).

In support of its motion for a change of venue claimant's counsel avers that the testimony of non-party consultants located in the New York District of the Court of Claims will be necessary. In this regard, claimant submits the affidavit of Michael J. Russo, an architectural designer employed by the firm of Hawkins, Webb & Jaeger, PLLC, who avers that he has first hand knowledge of the conduct of State Parks in this matter as does Keith Itzler of Dewberry-Goodkind, a consulting firm who performed services as a sub-consultant for his firm. Mr. Russo states that both his home and office are located in Suffolk County, New York, and that counsel has advised him that at least two days will be required to complete his trial testimony, which will require overnight stays of three to four nights. Mr. Russo indicates that both his firm and Mr. Itzler's firm are very busy and the time it would require to attend trial in Saratoga County[1] presents a material inconvenience for both him and Mr. Itzler. Mr. Russo states in his affidavit that he will testify regarding claimant's allegations that State Parks willfully delayed the project in that it knew before the lease was signed that the design criteria included an occupied basement but failed to advise him or the claimant that a variance from the New York Department of State Board of Review would be required (see Affidavit of Michael J. Russo, ¶ 5). An affidavit from Mr. Itzler was not submitted in support of the motion.

In opposition to this branch of claimant's motion, defense counsel points out that Albany County is where both State agencies whose conduct is challenged (State Parks and the Department of State) have their principal place of business and where at least eight high ranking public officials who are expected to testify at trial are located. Additionally, defense counsel avers that Albany is where the contract was negotiated, where project meetings were conducted and where the official lease records are maintained. Submitted in opposition to the claimant's motion are the affidavits of Daniel S. Kane and Ronald Piester. Mr. Kane has been the Deputy Commissioner of Operations for the New York State Office of Parks, Recreation and Historical Preservation since January 2007 and, prior to that time, held the position of Director of Resource Management. In his capacity as Director of Resource Management he was responsible for overseeing the Jones Beach project for compliance with internal agency guidelines, including design criteria and compliance with the State Environmental Quality Review Act and State historic review. He avers that he is familiar with all aspects of the project from the development of the request for proposals in 2003 to the present, including the lease negotiations and project meetings. He avers that in addition to himself, there are three other senior officials and two lower ranking officials who had a role in the lease negotiations, all of whom work in either Albany or Saratoga County, and that it would be a severe hardship for them to travel to Long Island for trial. Additionally, Mr. Kane indicates that the collective absence of senior officials from work, including himself, for the purpose of a trial on Long Island would create an extreme hardship to State Parks as they hold senior level positions which are critical to the agency's operation.

Mr. Kane also indicates that those individuals specifically named in the complaint (incorporated by reference in the claim) have material knowledge of the matters alleged and that their testimony may be necessary to refute the claimant’s allegations. These individuals include Commissioner Carol Ash, John Eberhard, Director of Capital Programs and Scott Fish, Long Island Regional Capital Facilities Manager. He indicates that both Carol Ash and John Eberhard work in Albany and that in addition to the personal hardship it would cause them to travel to Long Island for trial, it would cause hardship for State Parks to have its Chief Executive Officer and Director of Capital Programs absent from the office. The only State Parks’ official likely to be called at trial who works on Long Island is Scott Fish.

Defendant also submitted the affidavit of Ronald Piester, Director of the Division of Code Enforcement and Administration in the New York State Department of State, who, together with Steven Rocklin, Assistant Director for Regional Services, are specifically mentioned in the complaint (see Exhibit A to defendant’s Exhibit A, ¶ 67). Mr. Piester avers that his testimony and the testimony of Mr. Rocklin may be necessary to refute the allegation that the variance hearing was manipulated by the Department of State at the behest of State Parks. Both of these potential witnesses live and work in Albany and would suffer hardship if called upon to testify at a trial on Long Island, according to Mr. Piester's affidavit.

While the claimant has established that one witness and perhaps two may be inconvenienced by a trial in Albany, the defendant has established that ten of its potential witnesses at trial would suffer hardship if the venue of this action was changed to the New York District. Consideration of all the relevant factors leads this Court to the conclusion that the ends of justice would be best served if this action remains venued in Albany County where the preponderance of witnesses reside. Claimant's alternative argument for a change of venue, that this action may only be venued in the county where the property is located pursuant to CPLR 507, lacks merit. Claimant asserts that CPLR 507 is controlling because this action "arises out of the 'possession, use or enjoyment' of a leasehold in real property" (claimant's counsel's affirmation in support of motion, ¶ 18) . However, CPLR 507 is applicable only to lawsuits demanding a judgment that would affect the title to, or the possession, use or enjoyment of, real property and a transitory cause of action such as the one at bar does not fall within that category (see Port Bay Assoc. v Soundview Shopping Ctr., 197 AD2d 848, 849 [1993]; quoting CPLR 507; see generally Smith, 2 NY Prac Com. Litig. in New York State Courts § 3:15 [2d ed.]). "It is not sufficient that the action merely involves realty; it must be shown to ‛affect' it in some way before coming under this venue provision” (Siegel, NY Prac § 121 [4th ed.]). Here, the relief demanded is monetary and does not affect the title to, or the possession, use or enjoyment of the Jones Beach property in Nassau County, New York for purposes of CPLR 507 ( cf. Regal Boy Enters. Intl. VII, Inc. v MLQ Realty Mgt., LLC, 22 AD3d 738 [2005] [action to permanently enjoin defendant from interfering with or interrupting the plaintiff’s construction of its leasehold premises pursuant to a commercial lease was one which would affect title to or the possession, use or enjoyment of real property]; Merrill Realty Co. v Harris, 44 AD2d 629 [1974] [venue of lawsuit which sought judgment canceling a written agreement for the sale of property and impressing a lien upon the property for the amount of plaintiff's damages together with a decree directing sale of the premises to satisfy said lien was properly laid in county where the property was located pursuant to CPLR 507]). Accordingly, CPLR 507 affords no basis for a change of venue in this case.

Claimant's motion seeking a change of venue is denied.

January 5, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 9, 2008;
  2. Affirmation of Steven R. Schlesinger dated September 9, 200[8];
  3. Affidavit of Michael J. Russo sworn to September 9, 2008 with exhibit;
  4. Affirmation of Patricia M. Hingerton dated September 29, 2008 with exhibits;
  5. Memorandum of Law of Patricia M. Hingerton dated September 29, 2008.

[1]. Trials in the Albany District of the Court of Claims are held in the Justice Building in Albany, New York, not Saratoga County.