New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2000-007-076, Claim No. 94484, Motion Nos. M-62393, CM-62625


Claimant - a former inmate who was deported - sought to compel defendant to take his testimony in Guyana, South America. 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:
Law Office of Adam M. Thompson, P.C. (Bernard B. Schachne, Esq., Trial Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Saul Aronson, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
December 19, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has made an application for a protective order pursuant to CPLR 3103. Claimant has made a cross-motion for, inter alia, an order directing that the testimony of claimant be taken in Georgetown, Guyana, South America. The return date of the motion was November 8, 2000.[1] The following papers were read and considered by the court:

Notice of Motion, Affirmation of Saul
Aronson, Esq., Annexed Exhibits 1, 2, 3

Notice of Cross-Motion, Affidavit of

Claimant, Affirmation of Bernard B.
Schachne, Esq., Annexed Exhibits 4, 5, 6, 7

Affirmation of Saul Aronson, Esq.
in Opposition to Cross-Motion 8

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, 1995,[2] 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.[3] 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 county[4] 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 (supra), 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 Marlborough-Gerson Gallery (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 conduct.[5] In Roach v Sobal (1999 US 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 * * *."[6] 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 York.

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 sustained.[7] 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. (21 FRD 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.


December 19, 2000
Plattsburgh, New York

Judge of the Court of Claims

The parties appeared before the court in a conference conducted to address the issues framed by the motions. The relief requested by claimant also included an adjournment of the December 14, 2000 trial date. The trial was adjourned by letter dated November 29, 2000.
Although the claim alleges that the incident occurred on December 19, 1995, the affidavit of claimant submitted in support of his cross-motion recites the accident date as "on or about December 20, 1995" (Claimant's Affidavit, par. 2).
The court's file further reflects that the court conducted a telephone conference with counsel for both parties on October 25, 1996.
The effects of the districts in the Court of Claims (22 NYCRR § 206.4) and of the provisions of Court of Claims Act § 17 upon the general rule are not a concern to the court in the current matter because claimant is in a foreign country, not merely an area of the State other than where the claim is venued.
The case cited by claimant in support of his argument to hold a deposition before the Consul in Guyana (i.e., Lehwirth v Leslie, 280 App Div 927) is not persuasive. Although the court in Lehwirth directed the testimony of the plaintiff to be taken before an American Consul, the decision contains no discussion of the relevant facts that led the court to direct such relief.
In Roach (supra), the plaintiff had also failed to maintain contact with the court or defendant after being deported. Unlike such situation in Roach, the claimant before the court has been diligently represented by counsel since being deported.
Because the purported injuries occurred in an alleged accident between a motor vehicle and a pedestrian, the "serious injury" threshold of Insurance Law § 5102 may be implicated (see, Thomas v Drake, 145 AD2d 687).