January 7, 2014
In the Matter of the Application of Victoria Wofford, Petitioner,
New York State Department of Corrections and Community Supervision, Respondent.
Alexander W. Hunter Jr., J.
The cross motion by respondent New York State Department of Corrections and Community Supervision ("DOCCS") for an order pursuant to CPLR 506(b), 510, and 511, directing a change in the location of trial and transferring the proceeding to the Supreme Court, Albany County, is granted. The application of petitioner for a judgment pursuant to CPLR Article 78, is stayed pending the change in venue.
Petitioner is an inmate presently incarcerated at Taconic Correctional Facility located in Bedford Hills, New York. On May 15, 2010, petitioner was convicted of grand larceny in the first degree, for taking approximately $17.5 million dollars from American Express. Respondent DOCCS is comprised of the Office of the Inspector General and the Office of Counsel, each having principal offices located in Albany County, New York.
On February 8, 2012, the Office of the Inspector General designated the status of petitioner as a central monitoring case ("CMC"). The stated reason for the designation was that petitioner requires close supervision because of her instant offense of grand larceny.
By determination dated May 24, 2012, the Office of the Inspector General denied the administrative appeal of petitioner citing a lack of substantiation regarding the claims of petitioner. Petitioner filed a second administrative appeal from her CMC designation. The Office of Counsel denied the second appeal on May 9, 2013, stating that the CMC status was based on the nature of her grand larceny conviction.
Petitioner commenced the instant special proceeding.
Respondent served petitioner, pursuant to CPLR 511(a) and (b), with a written demand for a change of venue to the Supreme Court, Albany County. Plaintiff opposes the demand for change in venue on the ground that the material events underlying this Article 78 proceeding occurred in New York County. Respondent filed a cross motion to change venue, pursuant to CPLR 510 and 511. Respondent avers that petitioner improperly designated New York County as the place of venue, as the decision and determinations being challenged by petitioner were made by the Office of the Inspector General and the Office of Counsel, both having principal offices in Albany County, New York.
CPLR 506(b) provides that an Article 78 proceeding shall be commenced "in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of respondent is located."
This court finds that venue does not lie in New York County. The decision to designate petitioner as CMC status and the determination to affirm the denial of the appeal was made in Albany County. The material events or the decision making process of respondent took place in Albany County. The principal office of respondent is located in Albany County. Accordingly, venue properly lies in Albany County.
Petitioner relies on the language of CPLR 506(b), in which it states, venue is possibly proper where the "material events otherwise took place." Petitioner contends that the "material events" should be considered her crime, sentencing and conviction, which took place in New York County. However, the argument that the "material events" are considered to be the ones that pertain to the instant offense, is misplaced. "[M]aterial events, " for purposes of interpreting the venue provisions of CPLR 506(b), has been construed as the "decision making process leading to the determination under review." Vigilante v. Dennison, 36 A.D.3d 620, 622 (2nd Dept. 2007).
Accordingly, it is hereby
ADJUDGED that the cross motion by respondent for an order directing a change in the location of trial and transferring the proceeding to Albany County, is granted.
ORDERED that venue of this action is changed from this Court to Supreme Court, County of Albany, and upon service by movant of a copy of this order with notice of entry and payment of appropriate fees, if any, the Clerk of this Court is directed to transfer the papers on file in this action to the Clerk of the Supreme Court, County of Albany; and it is further,
ORDERED that the underlying special proceeding is stayed pending the change in venue; and it is further,
ORDERED that the time for respondent to serve an answer or motion in response to the petition is extended until at least 30 days after the Office of the Attorney General receives written notice of the new return date in Supreme Court, Albany County, which shall not be deemed an adjournment.