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Bamra v. State

New York State Court of Claims
Jan 2, 2015
# 2014-015-032 (N.Y. Ct. Cl. Jan. 2, 2015)

Opinion

# 2014-015-032 Claim No. 122164 Motion No. M-85681

01-02-2015

AVTAR BAMRA v. THE STATE OF NEW YORK

A. Ali Yusaf, Esquire Stephen A. Skor, Esquire, Trial Counsel Honorable Eric T. Schneiderman, Attorney General By: Joan Matalavage, Esquire Assistant Attorney General


Synopsis

Claimant's motion for a change of venue from the Albany District to the New York District of the Court of Claims pursuant to CPLR 510 (3) was granted. Claimant established that the convenience of material nonparty witnesses would be served by the change.

Case information

UID:

2014-015-032

Claimant(s):

AVTAR BAMRA

Claimant short name:

BAMRA

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

122164

Motion number(s):

M-85681

Cross-motion number(s):

Judge:

FRANCIS T. COLLINS

Claimant's attorney:

A. Ali Yusaf, Esquire Stephen A. Skor, Esquire, Trial Counsel

Defendant's attorney:

Honorable Eric T. Schneiderman, Attorney General By: Joan Matalavage, Esquire Assistant Attorney General

Third-party defendant's attorney:

Signature date:

January 2, 2015

City:

Saratoga Springs

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant moves for a change of venue from the Albany District to the New York District of the Court of Claims pursuant to CPLR 510 (3).

Claimant was allegedly injured during the course of a renovation project on a building located at the W. Averell Harriman State Office Building Campus in Albany, New York. By Decision and Order dated June 10, 2014, claimant was granted summary judgment on the issue of liability under Labor Law § 240 (1). Claimant now moves for a change of venue to the New York District on the ground that the two nonparty witnesses he expects to call for the damages trial, both of whom are physicians, maintain their offices in the New York District and are unwilling to travel to Albany. Affirmations of Shahid Mian, M.D. and Stella P. Mansukhani, M.D., were submitted in support of the motion. Both doctors state that they have treated the claimant since the date of his accident on September 12, 2012 and, although they are willing to testify at a trial held in New York City, they would be unable to travel to Albany because it is more than 150 miles from their work or home (see claimant's Exhibits H and I). Dr. Mian performed right knee surgery on the claimant on June 21, 2013 and right shoulder surgery on January 24, 2014. He last examined the claimant on August 5, 2014. Dr. Mansukhani indicates that she is affiliated with DHD Medical, P.C., and has personally examined and treated claimant from November 8, 2013 to the present time. She last examined the claimant on August 8, 2014.

Dr. Shahid Mian maintains offices in both Queens and New York counties and resides in New York County. Dr. Mansukhani is affiliated with DHD Medical, P.C., which is located in Kings County, New York, the same county in which claimant resides.

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 Dept 1957]; 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 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 a motion for a change of venue pursuant to CPLR 510 (3) the proponent of the motion 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" (Liere v State of New York, 123 AD3d 1323 [3d Dept 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]). Claimant established through the affidavits of his treating physicians that the convenience of material, nonparty witnesses would be served, and the ends of justice promoted, by a change of venue to the New York District (see 22 NYCRR 206.4 [b]).

Defendant, on the other hand, established only that it may call some unidentified nonparty witnesses from the Albany area regarding the proximate cause of claimant's injuries. In this regard, defendant points to the fact that claimant was a passenger in a vehicle operated by his coworker when it struck another vehicle in the rear as they were on their way to the hospital for treatment following the instant accident. Claimant denied during an examination before trial that he was injured in the automobile accident (defendant's Exhibit D, p. 53) and testified that, although he speaks little English, he was able to inform hospital staff that his injuries were sustained in a fall from a ladder (id. at 55). Indeed, the hospital records indicate, with one exception, that claimant informed hospital personnel that his injuries were sustained in a fall from a ladder. In this regard, the "History of Present Illness" portion of the physician notes from St. Peter's Hospital states: "Patient was at work today when he fell 10 - 12 feet off a ladder" (defendant's Exhibit C, p. 1). In addition, most of the radiology reports included in the records reflect a fall from a ladder. Only a brief reference regarding the automobile accident appears in the triage notes, which state: "Pt to R2 via EMS s/p MVA. Pt with right arm deformity" (id. p.1). Given defendant's failure to proffer more than the mere possibility that a nonparty witness from the Albany area with relevant information may be called to testify at trial, the Court agrees a change of venue is warranted.

Based on the foregoing, the claimant's motion is granted and the place of trial of the claim is changed from the Albany District to the New York District of the Court of Claims.

The Clerk of the Court is directed to effectuate this change.

January 2, 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 9, 2014;

Affirmation of A. Ali Yusaf dated September 9, 2014 with exhibits;

Affidavit of Joan Matalavage sworn to October 3, 2014 with exhibits;

Reply affirmation of Stephen A. Skor dated October 9, 2014.


Summaries of

Bamra v. State

New York State Court of Claims
Jan 2, 2015
# 2014-015-032 (N.Y. Ct. Cl. Jan. 2, 2015)
Case details for

Bamra v. State

Case Details

Full title:AVTAR BAMRA v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Jan 2, 2015

Citations

# 2014-015-032 (N.Y. Ct. Cl. Jan. 2, 2015)