For the reasons set forth below, Claimant’s motion seeking a change of
venue of the trial is denied and his request for a subpoena ad testificandum
and subpoenas duces tecum is also denied.
Claimant alleges in the Amended Claim that, in August 2003, he was told that he
would be transferred from Dorm G-1 at Bare Hill Correctional Facility
(hereinafter Bare Hill) to Dorm E-2. Claimant contends that he had been placed
in Dorm G-1 for medical reasons because of certain features in that dorm, such
as rails in the shower and bathroom. Claimant asserts that he filed a grievance
protesting his proposed move, that the grievance committee concluded that
Claimant’s account was correct and, thus, that he could be moved from Dorm
G-1 only at the direction of a doctor.
A month later, on September 16, 2003, Claimant again was informed that he would
be moved from Dorm G-1, this time to the annex part of the facility, Dorm M-2.
He maintains that again he protested, but that a sergeant who had been present
at the first grievance hearing stated that Claimant’s medical records did
not indicate that reasonable accommodation with respect to housing was required.
Claimant asserts that, when he went to sick call on September 18, 2003, the
nurse said that he had to be housed in the main facility. On September 26,
2003, he was moved back to a dorm in the main facility. Claimant says that the
officer in charge at Dorm M-2 required Claimant to carry his own, very heavy,
bags, although he protested that he was restricted from heavy lifting by the
doctor. While attempting to carry a duffel bag weighing approximately 100
pounds, Claimant fell and struck his head.
The Amended Claim sets forth two causes of action: for injuries suffered when
he was forced to carry a heavy bag and, as a result, he fell and hit his head;
and for moving Claimant from the main facility to the annex on September 16,
2003 in violation of regulations and medical department instructions.
By Motion No. M-75310, Claimant seeks a change of venue pursuant to CPLR §
510. He asserts that he has “medical issues with both of [his] legs and
the cuffs hurt very much” (Murray Affidavit in Support, ¶ 7). Thus,
Claimant requests that the video conference trial take place with him at
Mid-State Correctional Facility in Marcy, New York instead of Clinton
Correctional Facility in Dannemora, New York, where the trial is scheduled to
take place on November 14, 2008.
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 [3d Dept 1990]) and must identify, among
other things, the witnesses and the substance of their testimony (Stainbrook
v Colleges of Senecas, 237 AD2d 865 [3d Dept 1997]). Claimant does not
assert how many witnesses he intends to call at trial, but does assert that the
change of venue is for his benefit.
Absent medical proof that Claimant cannot travel because of medical issues, or
information that he has enemies at Clinton Correctional Facility which would
prevent his transfer, Claimant has not shown why he should not be transported
for the trial of this Claim. The Court finds that Claimant has failed to meet
his burden of proof to have the venue of the trial changed.
By Motion No. M-75349, Claimant seeks to subpoena Linda Turner, Deputy
Superintendent for Programs at Bare Hill. He also seeks subpoenas duces tecum
for the “Protocols” for moving inmates with medical restrictions
and Ms. Turner’s memorandum dated October 8, 2003.
“It is the claimant’s burden to show that the testimony of the
requested [nonparty witnesses] is ‘necessary to the prosecution of his
claim’ ” (Medina v State of New York, Ct Cl, Claim No.
109178, Motion No. M-73412, August 4, 2008, Ferreira, J. [UID No. 2008-039-089],
quoting Hall v State of New York, Ct Cl, Claim No. 107826, Motion No.
M-74183, November 7, 2007, Milano, J. [UID No. 2007-041-052]; quoting Ramirez
v State of New York, Ct Cl, Claim No. 105701, Motion No. M-71478, June 13,
2006, Hard, J. [UID No. 2006-032-049]).
Claimant asserts, in general and conclusory terms, that the witness has
knowledge that is material to his claim (Murray Affidavit in Support, unnumbered
paragraph, p. 2). Based upon this general and conclusory statement, the Court
cannot find that Claimant has established that the witness’ testimony
would be material and relevant to the issue of the State’s alleged
negligent conduct. Therefore, the motion to subpoena Deputy Superintendent
Turner is denied.
The Court now turns to Claimant’s request for subpoenas for documents.
Claimant seeks the production of “Protocols” for moving inmates with
medical restrictions. Claimant has not established that those protocols exist,
or that he is unable to obtain them without the need for a subpoena (Murray
v State of New York, Ct Cl, Claim No. 110923, Motion No. M-73079, June 25,
2007, Collins, J. [UID No. 2007-015-205]; see Johnson v State of New
York, Ct Cl, Claim Nos. 106601, 106179, 107011, 107138, 106508, 106878,
Motion Nos. M-71826, M-71857, M-71858, M-71859, M-71861, M-71862, June 30, 2006,
Moriarty, J. [UID No. 2006-037-013]), or even that he ever served a proper
demand upon Defendant to provide such document. Claimant has failed to
establish the relevance or existence of Deputy Superintendent Turner’s
alleged memorandum of October 8, 2003 (id.) or that he attempted to
obtain it through discovery (id.). Therefore, the request to subpoena
the documents is denied.
Based upon the foregoing, Claimant’s motions are denied in their