In this action, plaintiff Ralph Palma seeks to recover damages allegedly sustained when Palma tripped and fell on an allegedly defective New York City "Water cap" in front of defendant Christanthy Tzivas' (Tzivias) residence located at 77 82nd Street, Brooklyn, New York. Palma has sued the City of

New York (the City) and Tzivas .

The City now moves for a change of venue from Kings County to New York pursuant to CPLR § 510(2). Tzivas joins in the motion. The section provides as follows:

The Court, upon motion, may change the

place of trial of an action where:

2.There is reason to believe that an impartial

trial cannot be had in the proper county; .......

Plaintiff, a resident of the county of Richmond, placed venue in Kings as it was the situs of the accident. Thus, pursuant to CPLR § 504(3), venue was properly placed. The Court also notes that defendant Tzivas resides in Kings County. [*2]

It is axiomatic that the burden of establishing that "an impartial trial cannot be had in the proper county" is on the moving party (DeBolt v Barbosa, 280 AD2d 821 [3d Dept 2001]).

The City argues that it has met its burden based on the following:

Ralph Palma is employed as the Case Management

Coordinator by the Office of Court Administration

at the Kings County Courthouse of the Supreme

Court of the State of New York. He has his own

office there and has been working at the Kings

County Courthouse for over twenty-eight years

( transcript of 50h hearing annexed hereto as

Exhibit 1, p.5). Mr Palma is well-known by virtually

all employees of the courthouse and is also extremely

well liked. Additionally, he is a supervisor and is in a

position of power at the Courthouse. The City respectfully

suggests that the reputation of the Courts for strict impartiality

in the administration of justice would be better maintained,

under the circumstances here presented, by avoiding even the

slightest ground for suspicion as to the fairness of the trial.

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Plaintiff opposes the motion arguing that the City has not met its burden of "showing facts which demonstrate a strong possibility that an impartial trial" cannot be obtained.

At the start of the oral argument, the Court advised the parties that the Court was familiar with Palma, had contact with him as Manager of Court Facilities and that Palma was currently working on a facilities request by the Court. The Court also inquired if any party objected to the Court hearing the motion. No one objected.

Plaintiff's counsel relies on Jablonski v Trost, 245 AD2d 338 [2nd Dept 1997] and Cannon v City of New York, 27 AD3d 607 [2d Dept 2006] and asserts that the City is relying on "outdated (1954, 1978, 1984) distinguishable precedents" and "archaic (54, 30 and 24 years old) precedents........."

The cases relied upon by plaintiff are distinguishable. Trost did not involve New York State Court personnel but individuals of "power and standing in the community." Cannon involved a court officer employed in the criminal term whose suit was pending in the civil term.

The Court must disagree with plaintiff's characterization of the precedent set forth in the Second Department decisions as "archaic" and "outdated" . The principal enunciated in Second Department precedents —- "the protection of the Court's reputation from the sightliest suspicion as to fairness"- — is neither archaic nor outdated. (Burstein v Green, 61 AD2d 827 [2nd Dept 1978]). To the contrary, the principle sets forth the hallmark of our system of justice that there be strict impartiality and that even the slightest grounds for suspicion as to the fairness of a trial be avoided.(Arkwrite v Steinbugler, 238 AD 397 [2d Dept 1959]). [*3]

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Plaintiff has submitted an affidavit where he advises the Court that his duties are "totally facilities related" and he has "virtually no contact with courtroom proceedings". Plaintiff's affidavit misses the point and ignores the key issue before the Court i.e whether his job at the Kings County Courthouse raises issues of the appearance of favoritism or partiality. In his role as facilities manager at the Kings County Courthouse, plaintiff has daily dealings with Justices and their staff as to the needs of individual Justices. Palma is a talented and effective administrator at this role. Yet because of his role, it is impossible to avoid the "slightest suspicion" of favoritism if this case were to remain in Kings County.

Accordingly, the Court finds that the burden pursuant to CPLR 510(2) has been demonstrated in light of the important role performed by Palma at the Kings County Supreme Courthouse and the Court finds that his frequent interaction with court personnel, including Justices, requires transfer of the case to another County.

Notwithstanding plaintiff's argument, the Court does not find that all cases for all court personnel are required to be transferred. The Court in its discretion finds that, where as here, a key court employee whose job of necessity has him interacting with Justices and their staff mandates transfer to avoid the appearance of partiality.

The City requests that the case be transferred to New York County and plaintiff's counsel argues that if the Court were to grant the application to change venue that it has the right to choose the alternate county and requests Bronx County.

The Court declines the requests of both parties to transfer this case to the First Department which would be the case, if the Court were to transfer it to New York or Bronx County. Instead the Court

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exercises its discretion and transfers the case to Queens County. The Clerk of the Court is directed to transfer this case to Queens County.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

June 9, 2008

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