New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2001-011-508, Claim No. 101171, Motion No. M-62554


Synopsis


Claimant's motion for leave to take the deposition of a non-party witness is denied.

Case Information

UID:
2001-011-508
Claimant(s):
SHAWN GREEN, 97 A 0801
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101171
Motion number(s):
M-62554
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Shawn Green, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Eileen E. Bryant, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
January 25, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This is a motion by Claimant for leave to take the deposition of a non-party witness.

Under CPLR 3106(b) where the person whose deposition is sought is not a party to the action the witness is served with a subpoena by the noticing party and any objection to the examination must be raised by motion for a protective order. Inasmuch as Claimant is not an attorney and cannot issue the subpoena, leave of the court is required to effectuate the deposition.

A party is entitled to disclosure of all matter material and necessary to prosecution or defense of the action. Here, the non-party whose deposition is sought is Dr. William J. Hendrick who according to Claimant provided a radiological consultation. While Claimant asserts that the deposition of Dr. Hendrick is material and necessary to prosecution of the claim, he does not offer any factual support for this conclusion. In the absence of some factual showing that the deposition is necessary the motion is denied.

January 25, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Submitted:

  1. Notice of Motion dated October 11, 2000
  2. Affidavit of Claimant sworn to the 11th day of October, 2000