Richards v. State
281 A.D. 947
N.Y. App. Div.
1953
Check Treatment

■ — Order reversed on the law and facts, without costs of this appeal to either party, and motion denied. Memorandum: The claimant alleges in his claim that while he was confined as a prisoner in Attica Prison, and on December 7, 1949, his left foot was injured, that he was free from negligence, that the sole cause of the injury was the negligence of the State. His claim was filed with the Clerk of the Court of Claims on or about July 12, 1952. The calendar practice as to venue is found in rule 2 of the Rules of the Court of Claims. Pursuant to that rule, the accident having occurred in Wyoming County, the clerk placed it on the November, 1952, calendar for the term of the court to be held in Buffalo. By affidavit and notice of motion claimant’s counsel moved before one of the Judges of the court for an order transferring the claim from the Buffalo to the Syracuse calendar. The motion was opposed by the Attorney-General and answering affidavits of Dr. Martin, *948the warden of the prison, and a Deputy Assistant Attorney-General were filed. The court granted the motion and the State appeals from the order. We find nothing in the Court of Claims Act or in the rules of the court as to the procedure to be followed in such a ease. We assume, therefore, that the provisions of the Civil Practice Act concerning change of venue in the Supreme Court are applicable. (Court of Claims Act, § 9, subd. 9.) The affidavit of claimant’s counsel fails to make out a case for change of venue under the applicable provisions of the Civil Practice Act (§ 187). The order should be reversed and the motion denied. Claimant however is not without a remedy, if hardship exists. He may move the court for leave to take depositions (Civ. Prae. Act, § 288) or, in the alternative, to take the testimony of his physician in Syracuse before the court (Rules of Court of Claims, rule 1). All concur. (Appeal from an order transferring the claim of claimant from the Buffalo calendar of the Court of Claims to the next calendar of the Court of Claims to be held at Syracuse.) Present — Taylor, P. J., MeCurn, Vaughan, Kimball and Piper, JJ.