New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2009-038-558, Claim No. 105260, Motion Nos. M-76588, M-76589


Claimant’s motion for change of venue denied. Claimant’s convenience is not a compelling factor under CPLR 510 (3), and his contentions about travel restrictions and indigency are unsupported.

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):
M-76588, M-76589
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Kent B. Sprotbery, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 20, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks damages for injuries allegedly sustained as the result of the negligence of defendant’s medical staff in dispensing the wrong medication to claimant upon refilling an existing medical prescription while claimant was incarcerated at Greene Correctional Facility (CF) in March 2001. Claimant also seeks compensatory damages for allegedly retaliatory conduct after claimant filed a complaint regarding the alleged prescription error. The trial has been placed on the Court’s calendar for October 13, 2009. Claimant has filed two motions, the first of which seeks a change of venue from Albany to New York District (M-76588), and the second of which requests the issuance of judicial subpoenas (M-76589). Defendant opposes both motions. The claim is venued for trial in Albany because it arose within this district of the Court of Claims (see 22 NYCRR § 206.4 [a]). A court has the discretion to change the place of trial if “the convenience of material witnesses and the ends of justice will be promoted by the change” (CPLR 510 [3]; see O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 171 [2d Dept 1995]). “The party moving for a change of venue under CPLR 510 (3) has the burden of proof and is required to supply the names, addresses and occupations of the witnesses whose convenience he 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]).

Claimant’s failure to make any showing that witnesses would be inconvenienced by the Albany venue or that witnesses have been contacted and are willing to testify on his behalf is fatal to his motion (see Stainbrook v Colleges of Senecas, 237 AD2d 865 [3d Dept 1997]). Claimant’s contention that the other witnesses (presumably, defendant’s current or former employees who he seeks to subpoena in motion No. M-76589) would not be inconvenienced by a change of venue (see Davidson Affidavit in Support for Change of Venue, sworn to April 22, 2009, ¶¶ 7, 9) is without evidentiary support and is immaterial.

Claimant, who has been released from incarceration and now resides in Kings County, however, seeks to change the place of trial to New York County due to “the inconveneinance [sic] of travel due to financial means and parole stipulation that Claimant can not leave the 5 buroughs [sic] of New York City” (Davidson Affidavit, sworn to April 22, 2009, ¶ 3). These assertions do not provide a compelling reason to change the venue of the trial. First, the convenience of the parties – as contrasted with the convenience of non-party witnesses – carries little if any weight on a motion to change trial venue under CPLR 510 (3) (see Said v Strong Mem. Hosp., 255 AD2d 953, 954 [4th Dept 1998]; Mroz v Ace Auto Body & Towing, 307 AD2d 403, 404 [3d Dept 2003]; cf. Windhurst v Town of Thompson, 78 AD2d 930 [3d Dept 1980] [inconvenience due to party’s health condition considered important factor]). Second, claimant’s assertion that he cannot travel to Albany due to financial constraints is unsupported by any facts or evidence demonstrating his current financial status.[1] Further, claimant’s speculative contention that other witnesses may be better able than claimant to bear the cost of travel is wholly unpersuasive, especially considering that claimant is responsible for paying witness travel expenses (see footnote 2, infra). Finally, to the extent that he claims that the conditions of his parole prevent him from traveling outside the City of New York, claimant does not state that he has sought an exception to those conditions so that he may travel to Albany for this trial or that such a request has been denied. Having failed to demonstrate that the convenience of material witnesses or the ends of justice would be served by a change in venue, claimant’s Motion No. M-76588 will be denied.

Claimant’s motion for subpoenas (M-76589) will be granted in part. Claimant’s request for a subpoena duces tecum for production of the credentials and performance evaluation of “the nurse which was alleged in Claim No. 105260 as one of the tort feasors” will be denied. In the first instance, neither claimant’s motion nor the pleading itself identifies that nurse, and thus, the requested subpoena cannot be issued. Moreover, claimant’s request for this information has twice been denied by this Court on prior motions (see Davidson v State of New York, UID # 2003-028-538, Claim No. 105260, M-66322, Sise, J. [May 23, 2003]; Davidson v State of New York, UID #2002-028-074, Claim No. 105260, Motion Nos. M-65119, M-65265, M-65439, Sise, J. [Dec. 23, 2002]). Claimant’s request for a subpoena ad testificandum with respect to Nurse Laura Preble will be denied as unnecessary, as defendant states that it will voluntarily produce her for trial (see Affirmation of Kent B. Sprotbery, dated June 1, 2009, ¶ 4).

With respect to claimant’s request for a subpoena addressed to former Correction Sergeant Moore, now retired Lieutenant Moore, defendant states that it cannot produce him because he is no longer employed by defendant. As the claim includes a cause of action for retaliation that has not been challenged by defendant, and as claimant’s affidavit demonstrates that the testimony of this witness will be relevant to that cause of action, the Court will issue a subpoena addressed to former Sergeant Moore.[2]

In sum, it is

ORDERED, that Motion No. M-76588 is DENIED, and it is further

ORDERED, that Motion No. M-76589 is GRANTED to the extent that a subpoena will issue to former Sergeant Moore in accordance with this Decision and Order, and it is further

ORDERED, that Motion No. M-76589 is DENIED in all other respects.

July 20, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 105260, filed November 26, 2001;

(2) Order of Reduction of Filing Fee, Read, P.J., dated December 11, 2001;

(3) Notice of Motion (M-76588), dated April 20, 2009;

(4) Affidavit of Chester Davidson in Support For Change of Venue, sworn to April 22, 2009;

(5) Affirmation in Opposition to Claimant’s Motion to Change Venue of Kent B. Sprotbery,

AAG, dated June 1, 2009;

(6) Notice of Motion (for Subpoena Duces Tecum), (M-76589), dated April 20, 2009;

(7) Affidavit of Chester Davidson in Support of Subpoena Duces Tecum, sworn to

April 22, 2009;

(8) Notice of Motion (for Subpoena Ad Testificandum), (M-76589), dated April 20, 2009;

(9) Affidavit of Chester Davidson in Support Pursuant to Article 23 CPLR, sworn to

April 22, 2009, with exhibits;

(10) Affirmation in Opposition to Claimant’s Motion for Subpoenas of Kent B. Sprotbery,

AAG, dated June 1, 2009.

[1]. While claimant was granted limited poor person relief by an order of this Court dated December 11, 2001, such relief came more than seven years ago, at a time when claimant was incarcerated.

[2]. Execution and service of the subpoena for former Sergeant Moore shall be accomplished as follows:

Defendant shall inform claimant forthwith of the number of miles (round trip) that the witness will travel to appear in Court.

Claimant shall then forward to defendant a proposed subpoena, accompanied by payment of one day’s witness fee of fifteen dollars ($15.00) (see CPLR §§ 2303 [a] and 8001 [a]) and payment of travel expenses due (the number of miles multiplied by twenty-three cents [$0.23] [see CPLR 8001).

Upon its receipt of the proposed subpoena with payment of witness and travel fees, defendant shall submit the proposed subpoena to the Court for execution, having made such revisions as it deems necessary to effect service.
After execution of the subpoena, the Court will return it to defendant, who shall then execute service upon its former employee of the subpoena accompanied by payment of the witness fee and travel expenses.