New York State Court of Claims

New York State Court of Claims

GAROFOLO v. THE STATE OF NEW YORK, #2009-044-503, Claim No. 115577, Motion No. M-75567


Claimant’s motion for change of venue 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:
SCHNEIDER, KAUFMAN & SHERMAN, P.C.BY: Howard B. Sherman, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 15, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 District).[1] Defendant opposes the motion. Claimant replies.

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 [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 [2003]). 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 [1990]). 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 [1995]).

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 county.[2] 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 witnesses.”[3]

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.[4]

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 is denied.

January 15, 2009
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

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, 2008.

Filed papers: Claim filed on July 24, 2008; Amended Claim filed on August 11, 2008; Verified Answer filed on August 29, 2008.

[1]. Claimant also requests that the Court strike defendant’s twelfth affirmative defense which asserts that a CPLR 3012-a Certificate of Merit was not served with the claim. Claimant concedes that the Certificate of Merit was not initially served, but has attached such a certificate to the motion papers. As defendant appropriately notes, the failure to include a Certificate of Merit does not constitute a default in pleading warranting dismissal of the action (see Horn v Boyle, 260 AD2d 76 [1999], lv denied 94 NY2d 762 [2000]; Dye v Leve, 181 AD2d 89 [1992]; Kolb v Strogh, 158 AD2d 15, 16 [1990]). Because claimant has remedied this failure, the twelfth affirmative defense is stricken.
[2]. Apparently, the two physicians who performed claimant’s surgeries are not employees of defendant, but may have been under contract with DOCS to provide medical care to inmates in its custody.
[3]. Reply Affirmation of Howard B. Sherman, Esq. dated Nov. 21, 2008, ¶ 5.
[4]. The Court also notes that claimant’s current incarceration at Arthur Kill is irrelevant in determining this motion for change of venue (A.M.I. Intl. v Gary Pool Sales & Serv., 94 AD2d 890 [1983]).