New York State Court of Claims

New York State Court of Claims

LESANE v. THE STATE OF NEW YORK, #2000-009-438, Claim No. 102912, Motion No. M-62427


Synopsis


Claimant's motion for an order permitting him to take audio tape depositions of two non-party witnesses at Governeur Correctional Facility was granted.

Case Information

UID:
2000-009-438
Claimant(s):
JAMES LESANE
Claimant short name:
LESANE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102912
Motion number(s):
M-62427
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
JAMES LESANE, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
November 16, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, a prison inmate proceeding pro se, has brought this motion seeking an order permitting him to take audio tape depositions of two non-party witnesses, both of whom are also inmates at the same facility.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2


Filed Papers: Claim

The State has not submitted any papers in opposition to this motion.

Pursuant to CPLR Rule 3106(c), the deposition of an inmate is only permitted upon court order, and there must be a showing of special circumstances in order to take the deposition of a non-party, pursuant to CPLR § 3101(a)(4). Claimant desires to take the depositions of inmate Darrell Felder, DIN # 99-A-7021, and Pablo Cruz, DIN # 98-R-7017, both of whom allegedly witnessed the incident which forms the basis for this claim. Since these witnesses are currently incarcerated at the same facility as claimant, but may be transferred to another facility at any time, claimant's request to take these depositions at this time certainly satisfies the requirement of special circumstances under § 3101(a)(4).

Additionally, claimant seeks an order authorizing the recording of these depositions by audio tape. Tape recorded depositions are an accepted method of obtaining deposition testimony (see, CPLR Rule 3113), and they are expressly permitted in the Court of Claims (see, Uniform Rules for the Court of Claims, § 206.11[j]). Since defendant has not expressed any opposition to this request for audio taped depositions, claimant's request is therefore granted.

Accordingly, the Court directs that the depositions of non-party inmate witnesses Darrell Felder, DIN # 99-A-7021, and Pablo Cruz, DIN # 98-R-7017, be conducted at Gouverneur Correctional Facility by March 15, 2001, at a date and time mutually convenient for claimant, defendant's counsel, and the persons to be examined.

The cost of audio recording of these depositions shall be the responsibility of the claimant, pursuant to § 206.11(k) of the Uniform Rules for the Court of Claims.

Furthermore, claimant is cautioned that if subpoenas are required to secure the attendance of the non-party witnesses, together with any documents in the possession of said witnesses, such subpoenas should be submitted to the Court for approval well in advance of any scheduled date for depositions.

It is therefore,

ORDERED, that Motion No. M-62427 is hereby GRANTED, to the extent provided for herein.


November 16, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims