Opinion
# 2019-015-108 Claim No. 129899 Motion Nos. M-93063
01-30-2019
CHANDRABHUSHAN ANAND v. THE STATE OF NEW YORK
Chandrabhushan Anand, Pro Se Honorable Letitia James, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General
Synopsis
Claimant's motion was denied to the extent he sought discovery and a change of venue and was granted to the limited extent of extending the date to serve and file the note of issue.
Case information
| UID: | 2019-015-108 |
| Claimant(s): | CHANDRABHUSHAN ANAND |
| Claimant short name: | ANAND |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129899, 129898 |
| Motion number(s): | M-93063, M-93062 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Chandrabhushan Anand, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 30, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves to compel compliance with his request for discovery, to extend the date to file the Notes of Issue and Certificates of Readiness for Trial, and for a change of venue in both claim numbers 129899 and 129898.
In claim numbers 129898 and 129899 claimant, a former employee of the New York State Division of Housing and Community Renewal, alleges he was not paid all of the money to which he was entitled upon his retirement on February 21, 2017.
Claimant served a request for discovery by email on July 23, 2018 seeking the following documents (defendant's Exhibit A):
"[1.] Timesheet covering days 2/13/17 to 2/20/17
[2.] Letter of retirement with the envelope that it was sent in
[3.] DHCR Termination letter with proof of mailing
[4.] Date the Jury Duty certificate was received by DHCR along with the copy of the certificate sent.
[5.] All telephone calls that I made to Business Services Center with their transcripts and notes for the period February 1,2017 and July 31,2017
[6.] All emails that I sent to or received from DHCR Personnel department[ ], my supervisor Mr. Jeff Cain and Business Service Center for the period February 1,2017 through July 31,2017
[7.] All notes made by my supervisor pertaining to my requests for leaves or absence for the month of February 2017.
[8.] All communication sent to and received from the New York State Retirement System for the period January 1,2017 through February 28,2017
[9.] DHCR written policy regarding full and final settlement of dues."
By letter dated August 16, 2018, defendant objected to claimant's eighth and ninth demands and indicated that efforts were underway to obtain the remaining documents (defendant's Exhibit B). In a separate letter, also dated August 16, 2018 (defendant's Exhibit C), defendant provided copies of an email chain responsive to claimant's seventh request for notes made by claimant's supervisor pertaining to his requests for leaves of absence. By letter dated August 21, 2018 (defendant's Exhibit D), defendant responded to claimant's remaining demands. With respect to claimant's second and fifth requests, defendant indicated that it was not in possession of materials responsive to these demands and maintained its previously asserted objections to claimant's eighth and ninth demands.
CPLR 3101 (a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." The Court of Appeals has interpreted these words liberally to require the disclosure "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also Wiggins v Kopko, 105 AD3d 1132 [3d Dept 2013]). The scope of the statute is very broad, "consistent with New York's policy of permitting 'open and far-reaching pretrial discovery' " (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998] [citation omitted]). The party seeking disclosure need only establish either "that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Gomez v State of New York, 106 AD3d 870, 872 [2d Dept 2013], quoting Vyas v Campbell, 4 AD3d 417, 418 [2d Dept 2004] [other citation omitted]; Jordan v Blue Circle Atl., 296 AD2d 752 [3d Dept 2002]). Thus, Courts have construed CPLR 3101 (a) "to afford parties all discovery that may aid in preparing their case" (JRDM Corp. v U.W. Marx, Inc., 237 AD2d 798, 799 [3d Dept 1997]). The party seeking to prevent disclosure of relevant materials bears the burden of establishing that the information sought is immune from disclosure (Tower Ins. Co. of N.Y. v Murello, 68 AD3d 977 [2009]; Marten v Eden Park Health Servs., 250 AD2d 44, 46 [3d Dept 1998]; Bloss v Ford Motor Co., 126 AD2d 804 [3d Dept 1987]).
Here, defendant has provided appropriate responses to claimant's demands. Defendant cannot produce documents that are not in its possession (claimant's second and fifth requests) and defendant's objections to claimant's eighth and ninth demands were entirely appropriate.
That branch of claimant's motions seeking to extend the date to file the Notes of Issue and Certificates of Readiness for Trial appears to be based on the assertion the defendant has failed to appropriately respond to his requests for discovery. Inasmuch as the Court finds that the defendant is in compliance with claimant's requests for discovery, and the parties have not indicated the need for any further discovery, the Court will grant claimant only a brief extension of time to file and serve the Notes of Issue and Certificates of Readiness for Trial.
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 permits the Court to change the place of trial where the county designated for that purpose is improper (CPLR 510 [1]), there is reason to believe an impartial trial cannot be had (CPLR 510 [2]) or "the convenience of material witnesses and the ends of justice will be promoted by the change" (CPLR 510 [3]). The party seeking a 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]).
Claimant asserts that "[s]ince the witnesses, the business records, the jury duty, location of my home office are all located Downtown New York, as well as Nassau County I ask for a change in jurisdiction to Nassau County or New York County as in the Motion" (claimant's affidavit in support of motions, ¶ 12). Claimant failed to establish, as required, " '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' " (Talmadge v Roman Catholic Diocese of Albany, N.Y., 167 AD3d 1361 [3d Dept 2018]). The convenience of the parties or their employees and agents "carries little if any weight" and "the mere fact that witnesses must travel a significant distance does not establish, without more, that requiring their testimony would impose an undue burden" (State of New York v Quintal, Inc., 79 AD3d 1357, 1358 [3d Dept 2010]). Claimant's conclusory assertions regarding witness inconvenience, without demonstrating who they are, why their testimony is relevant or specifically how they will be inconvenienced, are clearly insufficient (id.).
Based on the foregoing, claimant's motions are denied except to the limited extent of extending the date to serve and file the Notes of Issue and Certificates of Readiness for Trial to March 15, 2019 for both claim numbers 129899 and 129898.
January 30, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Claim No. 129899, Notice of Motion (M-93063) dated October 17, 2018;
2. Affidavit in support sworn to August 31, 2018;
3. Claim No. 129898, Notice of Motion (M-93062) dated October 17, 2018;
4. Affidavit in support sworn to August 31, 2018;
5. Affirmation of Douglas R. Kemp, Esq., dated November 29, 2018 with Exhibits A-E.