New York State Court of Claims

New York State Court of Claims

COMBES v. THE STATE OF NEW YORK, #2000-007-027, Claim No. 100147, Motion No. M-61727


Claimant, an inmate, sought letters rogatory and an order directing depositions upon written questions. Motion denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
George Combes, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
(Belinda A. Wagner, Esq., Assistant Attorney General,of Counsel)
Third-party defendant's attorney:

Signature date:
June 15, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for an order issuing letters rogatory and directing certain depositions upon written questions pursuant to CPLR 3108. The return date of the motion was June 7, 2000. The following papers were read and considered by the court:

Notice of Motion to Issue Letters Rogatory,

Affidavit in Support, Affidavit of Good Faith,

Notice of Motion Compelling Disclosure,
Affidavit in Support, Annexed Exhibits 1, 2, 3, 4, 5, 6

Affirmation in Opposition 7

Rebuttal 8

Filed Papers: Claim, Supplement Claim,
Answer, Answer to Supplement Claim 9, 10, 11, 12

Claimant, an inmate, alleges, inter alia, that defendant failed to provide him with reasonable protection and as a result he was assaulted by another inmate on April 22, 1999 while housed at Green Haven Correctional Facility (hereinafter Green Haven). Claimant relates that, in 1994, he cooperated with the Queens District Attorney and testified in a criminal case against the "Westies" or "Irish Mafia." Because of his cooperation with law enforcement he was at risk in the prison population and thereafter was placed in the Assessment Program and Preparation Unit (hereinafter APPU) at
Clinton Correctional Facility
(hereinafter Clinton). Claimant contends that he was harassed by a sergeant at Clinton. He states that despite repeated warnings to various prison personnel that he was at risk for assault, he was nevertheless removed from the high-security environment in APPU and transferred to Green Haven. Within approximately two months of his arrival at Green Haven, his face was slashed with a razor blade by another inmate.

Claimant initially indicated to defendant that he desired to take the depositions of eight individuals. Claimant suggested audiotape depositions because he purportedly could not afford the cost of a stenographer. Defendant objected to many of the depositions and informed claimant that even if audiotape depositions were conducted he would need to retain a notary public to swear the witnesses. Thereafter, claimant proposed depositions upon written questions. Defendant did not agree to such procedure and the current motion ensued. Claimant seeks to take the depositions upon written questions of the following individuals: Glenn Goord, Commissioner of the Department of Correctional Services, Christopher Artuz, Superintendent of Green Haven, Mr. Caron, an Inspector from the Office of the Inspector General, and Mr. Silver, a sergeant at Green Haven.

Claimant's request that the court issue letters rogatory is denied. The primary use of a letter rogatory is to seek disclosure in a foreign jurisdiction. A letter rogatory is a formal communication by a New York Court addressed to a foreign tribunal pointing out the facts reflecting the need for a deposition of a person in the foreign place and seeking the foreign court's aid in issuing appropriate process (Siegel, Practice Commentaries, McKinneys Cons Law of NY, Book 7B, CPLR C3108:6, at 463; 6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3108.06). The individuals from whom claimant seeks information are all apparently residents of New York and subject to the jurisdiction of courts of this State.

Written questions pursuant to CPLR 3108 are not proper under the prevailing circumstances. The statute authorizes written questions pursuant to stipulation or when the testimony is being taken out of State. Here, there is no stipulation and the testimony is not being taken out of State. Although written questions may be used in some instances other than the two situations specifically authorized by CPLR 3108 (see generally, Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B CPLR C3108:1, at 459), the court is not convinced that such procedure would accomplish the result sought by claimant. Claimant seeks to gather information without incurring costs or expenses. The usual procedure for written questions involves the party to be examined being present with a stenographer and being administered an oath by a notary. The written questions are then read and the answers of the witness are recorded (see, 6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3108.06). Such a procedure would not accomplish claimant's desired goal of obtaining disclosure without incurring the expense of a stenographer.

Claimant is not, however, left without an avenue to gather relevant information. Much of the information he seeks ostensibly could be obtained by properly framed interrogatories (see generally, CPLR 3130-3133). Indeed, the nature of the relief claimant seeks under the nomenclature of "written questions" is actually more akin to interrogatories (6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3108.06).

It is

ORDERED that claimant's motion is denied.

June 15, 2000
Plattsburgh, New York

Judge of the Court of Claims