Opinion
# 2015-015-035 Claim No. 122778 Motion No. M-85732
01-09-2015
VINCENT AMATO v. THE STATE OF NEW YORK
Vincent Amato, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General
Synopsis
Motion for a change of venue was denied.
Case information
UID: | 2015-015-035 |
Claimant(s): | VINCENT AMATO |
Claimant short name: | AMATO |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122778 |
Motion number(s): | M-85732 |
Cross-motion number(s): | |
Judge: | FRANCIS T. COLLINS |
Claimant's attorney: | Vincent Amato, Pro Se |
Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 9, 2015 |
City: | Saratoga Springs |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves pursuant to CPLR 510 for a change of venue from the Albany District to the New York District of the Court of Claims.
Claimant alleges that, following a prison disciplinary hearing, he was found guilty of violating a facility rule and wrongfully confined to his cell at Clinton Correctional Facility for 118 days. The disciplinary determination was later annulled in a proceeding pursuant to CPLR article 78 on the ground claimant was deprived of his constitutional right to call witnesses on his own behalf. Claimant has since been released from prison and seeks a change of venue from the Albany District to the Bronx, which is within the New York District of the Court of Claims.
Claimant asserts that a change of venue is required because he is unable to leave the five boroughs of New York City as a condition of his parole, he is unemployed and financially unable to travel to Albany, and his anticipated non-party witnesses no longer reside at Clinton Correctional Facility.
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 [3d Dept1957]; Richards v State of New York, 281 App Div 947 [4th Dept 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 of venue bears the burden of proof (Andros v Roderick, 162 AD2d 813 [3d Dept 1990]) and the motion is directed to the Court's discretion (O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171 [2d Dept 1995]). To succeed on such a motion, the proponent must "provide the Court of Claims with the names and addresses of the nonparty witnesses that had expressed their willingness to testify, the substance and relevance of their proposed testimony, and how they would be unduly inconvenienced by appearing for trial in Albany County" (Liere v State of New York, ___AD3d ___, 2014 WL 7178179 [3d Dept, Dec. 18, 2014]; see also Hyman v Schwartz, 114 AD3d 1110 [3d Dept 2014], lv dismissed 24 NY3d 930 [2014]; Cavazzini v Viennas, 82 AD3d 1343 [3d Dept 2011]). Here, claimant failed to establish his entitlement to a change of venue. To the extent he asserts that he is a material witness and unable to travel to Albany due to the conditions of his parole, he failed to establish that he requested such permission and was denied. Moreover, it is well settled that the convenience of a party "carries little, if any weight on a motion pursuant to CPLR § 510 (3)" (State of New York v Slezak Petroleum Prods., Inc., 78 AD3d 1288, 1290 [3d Dept 2010], quoting Mroz v Ace Auto Body & Towing, 307 AD2d 403, 404 [3d Dept 2003]). To the extent claimant asserts that he is financially unable to travel to Albany for trial, his proffer of nothing other than his own conclusory statements is insufficient to warrant a discretionary change of venue. Lastly, to the extent claimant indicates that a transfer is necessary for the convenience of nonparty witnesses, he failed to provide their names and addresses, indicate their willingness to testify, provide the substance and relevance of their proposed testimony, or otherwise inform the Court how his nonparty witnesses would be unduly inconvenienced by appearing for trial in Albany.
As a result, the claimant's motion for a change in venue is denied.
January 9, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated September 5, 2014;
Unsworn "Affidavit" of Vincent Amato dated September 5, 2014;
Affirmation of Anthony Rotondi dated September 23, 2014.