New York State Court of Claims

New York State Court of Claims

LEGGIO v. New York, #2000-019-513, Claim No. 98993, Motion No. M-61471


Claimant moves for an order holding Michael Pelc, a nonparty witness, in contempt for failure to comply with a subpoena ad testificandum for a deposition. Motion denied without prejudice

Case Information

In the Matter of the Claim of ERICA LEGGIO, by BENNY A. LEGGIO, her father and natural guardian
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):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
April 24, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an order holding Michael Pelc, a nonparty witness, in contempt for failure to comply with a subpoena ad testificandum for a deposition.

The following papers were considered by the Court in connection with this motion:
  1. Claim, filed September 18, 1998.
  2. Notice of Motion No. M-61471, dated March 30, 2000 and filed April 3, 2000.
  3. Affirmation of Frank S. Russell, Esq., in support of motion, dated March 30, 2000, with attached exhibits.
  4. Affidavit in Good Faith of Frank S. Russell, in support of motion, dated March 30, 2000.
  5. Affirmation of Edward G. Heilig, Assistant Suffolk County Attorney, in opposition to motion, dated April 10, 2000.

This Claim arises from an automobile-pedestrian accident that occurred on October 3, 1995 in West Babylon, New York. The infant Claimant attempted to cross Little East Neck Road at its intersection with Columbus Avenue when she was struck by a vehicle. Claimant alleges that Little East Neck Road had been the subject of an extensive construction and widening project just prior to this accident. The Claim charges the State of New York (hereinafter "State") negligently allowed a utility pole to obstruct the view of both pedestrians and drivers.

Claimant contends a nonparty witness Michael Pelc, the County of Suffolk consultant for this project, failed to appear for a deposition despite being served with a subpoena. This Court, however, will not reach the merits of the motion due to, among other things, Claimant's failure to demonstrate a good faith effort to resolve this matter without court intervention.

The Uniform Rules for the Court of Claims (22 NYCRR) § 206.8 (b) require:

[w]ith respect to a motion relating to disclosure, a separate affidavit or affirmation in support, containing a representation that the parties have conferred with each other in a good faith effort to resolve the issues raised by the motion, shall be annexed to the motion papers.

This standard of a "good faith effort" has been interpreted to mean there must be a demonstration of "[m]ore than an exchange of computer generated form letters or cursory telephone conversations. Significant, intelligent and expansive contact and negotiations must be held between counsel to resolve any dispute and such efforts must be adequately detailed in an affirmation. (Eaton v Chahal, 146 Misc 2d 977, 983; emphasis added). Claimant's counsel merely states "[t]hat we have had conversations with the attorneys for the County of Suffolk, to obtain their employee Mr. Pelc's deposition, all to no avail. That we have previously subpoenaed Mr. Michael Pelc which he has refused to voluntarily appear." (Frank S. Russell, Esq., Affidavit of Good Faith). Here, there is absolutely no indication of either "[t]he time, place and nature of the consultation[s] and the issues discussed and any resolutions...."[1] (Uniform Rules for Trial Cts [22 NYCRR] § 202.7). Simply stated, Counsel's affidavit of good faith is insufficient when measured against this standard.

Moreover, the Assistant County Attorney for the County of Suffolk submits an affidavit in opposition on behalf of Mr. Pelc contradicting the picture painted by Claimant's counsel.[2] According to the County, Mr. Pelc had agreed to be deposed and a delay was mutually agreed upon for purposes of coordinating the scheduling of the deposition with the companion supreme court matter. Claimant's counsel submits nothing in reply to these assertions. Consequently, the only conclusion that may be drawn from these differing representations is that the "significant, intelligent and expansive contact and negotiations" envisioned by the court rules have either not taken place or, at the least, have not been properly detailed by Claimant's counsel in his affidavit.

In either event, Claimant has failed to comply with the Uniform Rules for the Court of Claims (22 NYCRR) § 206.8 (b).

Furthermore, while not raised by the nonparty witness, it is well-settled that an application to punish a nonparty for contempt must be served on that nonparty in the same manner as a special proceeding. (Long Is. Trust Co. v Rosenberg, 82 AD2d 591). As such, it appears Claimant's service of this Notice of Motion by regular mail on Mr. Pelc was insufficient. Finally, the Court notes the notice or subpoena itself did not state the circumstances or reasons such disclosure was sought or required. (CPLR 3101[a][4] & 3106[a][4]; see also, Bigman v Dime Sav. Bank of N. Y., 138 AD2d 438).

Consequently, the Court will deny the motion without prejudice to renewal upon proper papers. In the event that counsel are unable to resolve these issues, as the Court expects they can, Claimant may renew this motion which should include a good faith affirmation containing the substance of all conversations aimed at resolving this dispute. Moreover, in the event of a renewal of this motion, the Court will schedule oral argument via a telephone conference call in which the County of Suffolk attorney's office may participate on behalf of Mr. Pelc.

Accordingly, for the reasons stated above, it is ordered that Claimant's motion, Motion No. M-61471, is DENIED without prejudice.

April 24, 2000
Binghamton, New York

Judge of the Court of Claims

[1]The good faith requirement as stated in the Uniform Rules for the Trial Courts (22 NYCRR) § 202.7 is the functional equivalent of the good faith rule in the Court of Claims.
[2]The State did not submit any papers on this motion.