Opinion
# 2016-015-180 Claim No. 124731 Motion No. M-88892
11-09-2016
JAMEL BROWN v. THE STATE OF NEW YORK
Jamel Brown, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Douglas R. Kemp, Esquire Assistant Attorney General
Synopsis
Pro se inmate's motion for a change of venue based upon his fears for his own safety in the event he is transferred for trial was denied. Should DOCCS determine there is a legitimate concern for claimant's safety, future arrangements can be made for a remote video trial from the prison in which claimant then resides.
Case information
| UID: | 2016-015-180 |
| Claimant(s): | JAMEL BROWN |
| Claimant short name: | BROWN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124731 |
| Motion number(s): | M-88892 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Jamel Brown, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Douglas R. Kemp, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 9, 2016 |
| 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 Binghamton District of the Court of Claims.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for various assaults and instances of harassment by correction staff at both Great Meadow and Clinton correctional facilities. Claimant alleges in support of his motion that a change of venue is necessary because a trial held at either Great Meadow or Clinton correctional facilities would subject him to retaliatory conduct by correction staff at those facilities. He states the following in this regard:
"I would definitely be assaulted by staff if not worst. I would be isolated and intimidated not to go forth with my claim and misbehavior reports would be falsified to justify a[n] illegal use of force. The very things this claim is based on would happen again if the court [doesn't] change the venue" (Brown affidavit, ¶ 7).
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]).
Here, claimant's fears for his own safety do not require or warrant a change of venue under CPLR 510. To best serve the convenience of material witnesses, pro se inmate claims are generally tried by remote video conference from the prison in which the claims accrued. In this case, all of the potential witnesses to the events alleged in the claim were located in either Great Meadow or Clinton correctional facilities. Nevertheless, the DOCCS has been placed on notice of claimant's concerns for his own safety by service of the instant motion on its attorneys, the Office of the Attorney General. It is expected that DOCCS will consider the concerns addressed in the motion and notify the Court should it conclude that transporting the claimant to either facility poses a danger to his health and safety. In the event DOCCS notifies the Court that claimant cannot be moved for trial due to these safety concerns, alternate arrangements can be made.
Claimant indicates that he commenced an action in the Supreme Court against correction personnel in their individual capacities pursuant to 42 USC § 1983 and that a motion is pending to enjoin his transfer to either Great Meadow or Clinton correctional facilities. In the event this motion is granted, claimant should notify this Court and arrangements will be made for a remote video trial from the facility in which he resides.
Accordingly, the claimant's motion for a change in venue is denied.
November 9, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
Notice of motion dated July 3, 2016;
Affidavit of Jamel Brown sworn to July 3, 2016;
Affirmation of Douglas R. Kemp affirmed August 9, 2016.