Claimant filed this medical malpractice action alleging that he did not receive
adequate medical care while he was in the custody of the Department of
Correctional Services (DOCS). Defendant State of New York (defendant) answered
and asserted several affirmative defenses. Claimant moves for a change in venue
of this claim from the Binghamton District to either Westchester County (the
White Plains District) or New York County (the New York
Defendant opposes the motion.
Because the Court of Claims Act does not contain provisions for change of venue
motions, the Court must apply CPLR article 5 (Court of Claims Act § 9 ).
CPLR 510 (3) provides 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 such a discretionary change of
venue “bears the burden of demonstrating that a change is appropriate and,
generally, must support the application with detailed relevant information
establishing that the convenience of the nonparty witnesses would be enhanced by
the change” (Singh v Catamount Dev. Corp., 306 AD2d 738, 738
). This ‘detailed information’ must include the names,
addresses and occupations of the proposed witnesses, as well as both an
indication that they are willing to testify and the substance of their purported
testimony (Andros v Roderick, 162 AD2d 813, 814 ). There must also
be a showing of the manner in which the witnesses will be inconvenienced
(O’Brien v Vassar Bros. Hosp., 207 AD2d 169, 173 ).
Claimant states that his medical complaints concerning his right shoulder
commenced while he was incarcerated at Woodbourne Correctional Facility
(Woodbourne), located in Sullivan County, and that defendant’s subsequent
negligent acts occurred at Mount Vernon Hospital, and Arthur Kill Correctional
Facility (Arthur Kill). Clearly, the claim accrued in Sullivan County, the site
of the initial negligent conduct. This claim is therefore properly venued in
the Binghamton District (see Uniform Rules for the Court of Claims [22
NYCRR] § 206.4).
However, claimant alleges that the four surgeries after his initial complaints
were negligently performed at Mount Vernon Hospital, located in Westchester
County, by two physicians who both maintain offices in that
Claimant further asserts that he
received additional negligent treatment while he has been incarcerated at Arthur
Kill, located in Richmond County. Claimant also states that virtually all of
his treatment records are located at facilities in Westchester County and
Richmond County, and under the circumstances, venue should be changed to one of
these counties. Although claimant anticipates calling the two physicians to
testify, counsel candidly states that he “cannot assure [the] Court that
the witnesses involved, [some] of whom cannot be identified prior to depositions
. . . would be willing to testify on claimant’s behalf or the substance of
each witnesses’ testimony because they are obviously adverse
The Court finds that claimant has failed to meet his burden on this motion.
While claimant does identify the two physicians and their addresses, he has
completely failed to indicate whether they are willing to testify and the
substance of their proposed testimony. Further, there is no evidence of how
those two witnesses might be inconvenienced by trying this claim in Binghamton,
particularly given the parties’ ability to take the testimony of these
physicians on videotape, or by deposition, which would completely eliminate any
need for their attendance at trial (see Jones v State of New York,
Ct Cl, June 3, 2004, Fitzpatrick, J., Claim No. 101924-A, Motion No. M-67256
[UID # 2004-018-303]). Claimant has also admitted that he cannot currently
identify any other potential witnesses, whether they would be willing to
testify, or the substance of their purported testimony. Moreover, even though
the majority of claimant’s treatment records may be located in Westchester
and/or Richmond Counties, those records may easily be subpoenaed and produced
for trial in Binghamton.
It is apparent that at this early stage in the litigation, the absence of
detailed information concerning the convenience of the nonparty witnesses is
fatal to this motion. Accordingly, claimant’s motion for change of venue
1) Notice of Motion filed on September 19, 2008; Affirmation of Howard B.
Sherman, Esq., dated September 16, 2008, and attached Exhibit A.
2) Affirmation in Opposition of James E. Shoemaker, Assistant Attorney General,
dated October 22, 2008.
3) Reply Affirmation of Howard B. Sherman, Esq., dated November 21,