DeBolt v. Barbosa

280 A.D.2d 821, 720 N.Y.S.2d 283, 2001 N.Y. App. Div. LEXIS 1445
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 8, 2001
StatusPublished
Cited by7 cases

This text of 280 A.D.2d 821 (DeBolt v. Barbosa) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeBolt v. Barbosa, 280 A.D.2d 821, 720 N.Y.S.2d 283, 2001 N.Y. App. Div. LEXIS 1445 (N.Y. Ct. App. 2001).

Opinion

—Carpinello, J.

Appeal from an order of the Supreme Court (Canfield, J.), entered May 1, 2000 in Rensselaer County, which granted defendants’ motion for a change of venue.

[822]*822While CPLR 510 (2) authorizes a court, in its discretion, to grant a motion for a change of venue where “there is reason to believe that an impartial trial cannot be had in the proper county,” it is essential that sufficient facts to support such belief appear in the motion papers before that discretion can be exercised (see, Noonan v Luther, 128 App Div 673; Althiser v Richmondville Creamery Co., 27 Misc 2d 456, affd 13 AD2d 162). We have reviewed defendants’ submissions for a change of venue in this case and find that they fall short of establishing the requisite facts to invoke the discretion of Supreme Court. Accordingly, we reverse and remit the matter for trial in Rensselaer County. A recitation of the pertinent procedural events is necessary to gain a full understanding of the instant dispute.

The action stems from a September 4, 1996 bus-pedestrian accident. On that day, plaintiff Melissa DeBolt, then a freshman at Rensselaer Polytechnic Institute in the City of Troy, Rensselaer County, was struck by a school bus owned by defendant Albany Yellow Communications Company, Inc. and operated by defendant David Barbosa (hereinafter collectively referred to as defendants). The issue of venue apparently first surfaced during a discovery conference in June 1998. The parties have differing versions of what actually transpired at that conference; plaintiffs claim that defense counsel merely advised Supreme Court that defendants were “considering” a change of venue motion on the ground that they could not obtain an impartial trial in Rensselaer County. Defendants claim that they actually made an oral application to change venue outside Rensselaer County. No transcript of these proceedings is in the record on appeal. Assuming that the motion was made at that conference, it was apparently orally denied by Supreme Court on the ground that the City of Troy was' then also a party defendant to the action and thus venue had to remain in Rensselaer County. Approximately one year later, Supreme Court granted summary judgment to the City,1 a decision recently upheld by this Court (278 AD2d 764).

No written motion to change venue was thereafter filed by defendants. Rather, on the first day set for the commencement of the projected two-week trial (July 6, 1999) — when the jury pool was impaneled and plaintiffs had over 22 local and out-of-town witnesses, both lay and expert, lined up to testify— defendants made a “second” oral application to change venue. The alleged basis of this application was that press accounts of [823]*823problems that Albany Yellow had experienced with the Enlarged City School District of Troy rendered it impossible for defendants to obtain an impartial trial in Rensselaer County. Defendants did not submit any affidavits or documentary proof in support of their application. Notwithstanding, Supreme Court granted the motion. Within eight weeks of that order being entered, plaintiffs perfected an appeal to this Court.

Thereafter, defendants moved in this Court to strike plaintiffs’ record and brief on appeal on the ground that approximately 10 “documents” relied upon by Supreme Court in rendering its decision were not included in the record for this Court’s consideration. The documents allegedly improperly omitted from the record pertained to litigation between Albany Yellow and the School District in which the School District had sought to terminate its student transportation contract with Albany Yellow. Supreme Court had also presided over that litigation and had issued a decision over one year earlier granting summary judgment in favor of the School District. Regardless of what Supreme Court might have referred to in its oral decision to grant defendants’ application to change venue, defendants themselves certainly did not submit any documents, let alone these 10 documents, in support of that motion. We denied the motion to strike the appellate record and brief.

In the interim, defendants had moved to “resettle” Supreme Court’s order “[i]n an effort to further clarify the documents relied upon by [Supreme Court].” Instead of resettling its prior order, Supreme Court vacated it, without prejudice for defendants to renew within 20 days.2 Simply stated, the court gave defendants an opportunity to do that which they had failed to do on the oral application, namely, provide factual support for their application for a change of venue under CPLR 510 (2). Over a month later, defendants filed their motion to renew and included in their application those papers which had been submitted to Supreme Court in Albany Yellow’s then three-year-old contract dispute with the School District, including Supreme Court’s decision granting the School District’s motion for summary judgment. Supreme Court granted the change of venue motion, prompting this appeal.

As is commonplace in the criminal arena, a change of venue motion made on the day of trial should be denied (especially where, as here, it is wholly unsupported by affidavits or other written documentation) until an actual attempt has been made to impanel an impartial jury from those potential jurors then [824]*824present in the courthouse, with that process being transcribed (see, e.g., Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 230.20, at 195; see, e.g., People v Smith, 63 NY2d 41, 69, cert denied 469 US 1227; People v Boudin, 87 AD2d 133; see also, Wiedemann v Smithtown Gen. Hosp., 56 AD2d 649). If, despite best efforts through voir dire, counsel for either side continues to believe, and can objectively demonstrate, that an impartial trial is beyond the realm of possibility, the motion could then be renewed (see, People v Parker, 60 NY2d 714). Having been .denied the opportunity to review such a record, we turn to defendants’ claim that they cannot obtain an impartial trial in Rensselaer County as supported by the documentary evidence filed on their motion to renew.

Defendants “were required to come forward with facts demonstrating a strong possibility that an impartial trial of the action could not be obtained” in Rensselaer County (Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666 [emphasis supplied]; see, County of Onondaga v Home Ins. Co., 265 AD2d 896; Krupka v County of Westchester, 160 AD2d 681) and a mere belief, suspicion or feeling that an impartial trial cannot be had is an insufficient ground to grant the motion (see, Krupka v County of Westchester, supra; Clausi v Hudson Cement Co., 26 AD2d 872, 873). The majority of the material submitted by defendants consists of internal memoranda generated by, or letters between, the School District and Albany Yellow involving the School District’s perceived deficiencies in Albany Yellow’s performance of the parties’ bus transportation contract in 1997 and 1998. Although these documents referenced various traffic infractions, accidents and parental complaints about Albany Yellow during this time period, the vast majority of this material was not publicly disseminated.

The concerns of School District officials and the complaints of parents do not, ipso facto, transform into widespread public frustration or fury concerning Albany Yellow or reflect pervasive public

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Cite This Page — Counsel Stack

Bluebook (online)
280 A.D.2d 821, 720 N.Y.S.2d 283, 2001 N.Y. App. Div. LEXIS 1445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debolt-v-barbosa-nyappdiv-2001.