Filed Papers: Claim, Answer 9, 10
Claimant is a former inmate who was deported from the United States in April
1998 and currently resides in Guyana, South America. He reportedly cannot
return to the United States and thus seeks to compel defendant to conduct an
examination before trial of him in a manner with which he can comply. Claimant
has suggested various alternative solutions, including, inter alia, that
defendant's counsel travel to Guyana at claimant's expense, that defendant
submit written interrogatories to claimant or that the deposition be conducted
via audio and visual transmissions between Guyana and New York.
The underlying incident purportedly occurred on December 19,
while claimant was incarcerated at
Franklin Correctional Facility. He alleges that he was struck by a motor
vehicle owned by defendant and operated by an employee of defendant. Defendant
contests claimant's factual recitation of the incident. Defendant asserts that
claimant fabricated the incident, that the vehicle never contacted claimant and
that claimant, in fact, pushed a laundry cart into the vehicle (see
Aronson Affirmation, par. 3; Exhibit C annexed to Aronson Affirmation).
Claimant served a notice of intention to file a claim on February 21, 1996 and
a claim was filed on August 5, 1996. Defendant filed an answer on September 13,
1996. In a letter from chambers, dated October 2, 1996, the attorneys for the
parties were informed that disclosure should be completed and a note of issue
filed within 12 months.
Enclosed with the
letter of October 2, 1996 was a proposed stipulation and order setting deadlines
of October 10, 1997 to complete disclosure and October 24, 1997 to file a note
of issue. The parties failed to comply with the proposed deadlines. Indeed, if
the parties had complied with the originally proposed deadlines, the current
motions would be moot.
In March 1998, claimant's counsel wrote a letter to defendant's counsel
informing him that claimant had been transferred from the Department of
Correctional Services to the United Stated Immigration and Naturalization
Service, where he was awaiting deportation. Claimant's counsel further stated,
"Please schedule a deposition of Mr. Simmons as soon as possible if you plan to
do so." No deposition, however, was conducted prior to claimant being deported
on April 19, 1998. Thereafter, claimant ostensibly realized that he could not
prove his claim unless his sworn testimony was presented at trial. Claimant
thus served upon defendant a notice of examination before trial to take the
testimony of claimant before the United States Consul in Georgetown, Guyana,
South America. Defendant moved for a protective order. Claimant cross-moved
for various alternative forms of relief in which sworn testimony would be
elicited from him from outside the United States for use at trial.
The court is afforded broad discretion in establishing reasonable terms and
conditions to address disclosure disputes (Saratoga Harness Racing v
Roemer, 274 AD2d 887, 888; Wheeler v Citizens Telecommunications Co. of
N.Y., 274 AD2d 898, 899). Although the current motions are framed within
the context of a disclosure dispute, with both parties relying upon provisions
of article 31 of the CPLR, the motions reflect a concerted effort by claimant to
preserve his testimony so that he can present his case without appearing at
trial. The disputed notice of examination before trial was prepared and served
by claimant to have his own testimony taken in Guyana, South America. A party
serving a demand to take his own pre-trial testimony, while not novel,
nevertheless is not consistent with the normal course of disclosure.
The attempt by claimant to schedule his own deposition in a foreign country
when he had obtained neither a consent to such arraignment from opposing counsel
nor an order of the court was improper (see, Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3110:6, at 482-483).
Defendant's motion for a protective order regarding claimant's notice of
examination before trial, dated September 8, 2000, is granted to the extent that
claimant cannot unilaterally dictate the place of such examination without the
consent of opposing counsel or an order of the court. Claimant's cross-motion,
however, places before the court the issues implicated in his effort to secure a
deposition for use at trial.
The statutory disclosure provisions of CPLR article 31 apply equally to
residents and nonresidents (Bristol-Myers Squibb Co. v Yen-Shang B. Chen
186 AD2d 999; Gazerwitz v Adrian
, 28 AD2d 556, 557). The general rule
is that the deposition of a party should take place in the
where the action is pending (see,
e.g., Hoffman v Kraus
, 260 AD2d 435, 437; Levine v St. Luke's Hosp
109 AD2d 694, 695). Exceptions to the general rule may be permitted where the
party to be examined demonstrates that a deposition in such a location will
result in substantial hardship (Swiss Bank Corp. v Geecee Exportaciones
260 AD2d 254; Carella v King
, 198 AD2d 567; Kahn v Rodman
, 91 AD2d
910). In Hoffman v Kraus
), the court excused the
plaintiff, a resident of Hungary, from traveling to New York State for a
deposition since it was established that she was "more than 70 years old and in
failing health" (id
, at 437). Similarly, in Beauchamp v
(29 AD2d 937), an "elderly and infirm" plaintiff
residing in Australia was excused from submitting to a deposition in New York.
The purported significant hardship cannot, however, be rooted in a party's own
irresponsible conduct. Thus, a party who creates or compounds his or her
hardship, will not be permitted to use such hardship as a basis to circumvent
the normal statutory requirements (see, Bristol-Myers Squibb Co. v Yen-Shang
B. Chen, supra; cf.
, Siegel, Practice Commentaries, McKinney's Cons Laws of
NY, Book 7B, CPLR C3110:7, at 484 ["Moving outside the state after commencement
of the action, and especially when the move occurs after disclosure proceedings
have been initiated, accords the party no special advantage"]).
Here, the court finds that claimant's current inability to return to New York
to pursue his claim is not the result of an acceptable substantial hardship, but
was caused by his own conduct.
Claimant failed to pursue relevant and timely disclosure for over a
year-and-a-half between the time his claim was filed and when he was deported.
Claimant's failure in such regard is compounded by the fact that claimant
neglected to comply with the court's proposed deadline to complete all
disclosure and, if he had complied with the deadline, his deposition would have
been taken well before he was deported. More significantly, claimant was
ostensibly deported because of his own conduct of engaging in criminal activity
in this jurisdiction. There has been no suggestion that claimant was deported
for any reason other than his own culpable
In Roach v Sobal
Dist Lexis 4684, S.D.N.Y.), an action commenced by an inmate who was later
deported, the lawsuit was dismissed, in part, because the plaintiff had been
"deported from the United States and could not, in any event, legally return to
this country to pursue his lawsuit * * *."
Since claimant has failed to establish an acceptable significant hardship, the
court is not persuaded to direct that his testimony be taken outside of New
The court's decision not to compel a deposition of claimant if he cannot
return to this State is also influenced by defendant's argument that it is
entitled to an independent medical examination of claimant. Just as the actual
facts underlying the purported incident are seriously disputed, there are also
apparent significant disagreements over the injuries
Defendant's right and its desire
to have claimant examined by an independent physician are compelling under the
prevailing circumstances. Requiring defendant to retain a physician in Guyana
for such purpose is untenable. In Pierre v Bernuth, Lembcke Co.
194), the court was faced with a plaintiff who had been deported to Trinidad.
The court in Pierre
directed that the plaintiff present himself in New
York for a deposition and a medical examination, and that if he could not comply
with such direction, his lawsuit would be dismissed (see also, Bannell v
Liggett Drug Co
., 151 NYS2d 347 [The plaintiff, a resident of Costa Rica,
required to submit to a medical examination in New York prior to trial]).
The parties before the court ostensibly assume that claimant will not be
permitted to return to the United States for this litigation or any other
purpose. Claimant's efforts, if any, to lawfully return have not been
documented in the papers presented to the court. The court will thus extend the
current deadline for completing disclosure to afford claimant an opportunity to
explore whether there is any lawful means for him to return to New York to be
deposed and to submit to an independent medical examination. If claimant plans
to pursue his claim, he must lawfully present himself in New York State on or
before May 31, 2001. If claimant is unable to lawfully return to New York State
within the time frame set forth herein, the court will entertain a motion to
dismiss by defendant.