New York State Court of Claims

New York State Court of Claims

SAUNDERS v. THE STATE OF NEW YORK, #2002-016-013, Claim No. 81930


Deposition taken in Supreme Court action cannot be used where State was not present or afforded notice thereof.

Case Information

JAMES P. SAUNDERS, as Executor of the Estate of ELLEN M. SAUNDERS, Deceased
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:
Sciretta & Venterina, LLPBy: Marilyn Venterina, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Nancy Hornstein, AAG
Third-party defendant's attorney:

Signature date:
February 1, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Ellen Saunders fell while entering the Supreme Court building in Kings County on December 4, 1989, a fall that allegedly occurred because the structure did not have proper access for the disabled (claim, ¶¶ 21, 22 and 24).

The claimant brought two actions, this one in the Court of Claims, and an action against the City of New York in Supreme Court, Kings County (index no. 7585/91). Matters proceeded first in Supreme Court, where the defendant City of New York took the deposition of Ms. Saunders.

On December 10, 1995 claimant died in a fire in her apartment and shortly thereafter her brother was appointed executor of the decedent's estate. On June 16, 1996 the action against the City of New York was settled. The subject of this Order is claimant's pending request that the testimony given by Ms. Saunders in her deposition for the Supreme Court action be admissible in this Court.

Rule 3117 of the CPLR governs the use of depositions, providing in relevant part:
[T]he deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules, provided the court finds...that the witness is dead. [Subdivision (a) 3 (i).]
The State was not represented at the Saunders EBT, nor is it asserted that it was offered an opportunity to appear. Under such circumstances, the Saunders deposition is not admissible See Chin v Ademaj, 188 AD2d 579, 591 NYS2d 71 (2d Dept 1992).

Claimant relies principally upon Morales v State of New York, 183 Misc 2d 839, 705 NYS2d 176 (Ct Cl 2000), affd 282 AD2d 245 (1st Dept 2001 ), 722 NYS2d 860 and its antecedent, Healy v Rennert, 9 NY2d 202, 213 NYS2d 44 (1961). But those cases involved trial testimony (CPLR Rule 4517), for which the touchstone is the opportunity to cross-examine in court: ‘So long as the party in the first action had the same opportunity, motive and interest to cross examine as the party in the second action, there is sufficient guaranty of credibility of the prior testimony to permit it to be used. 9 Weinstein-Korn-Miller, New York Civil Practice ¶4517.32' (183 Misc 2d at 843, 705 NYS2d at 179).[1] Even were Saunders' testimony not taken at deposition, but made in a prior trial, claimant makes no showing that the motive and interest of the City of New York in questioning Saunders would be the same as that of the State of New York.

For the foregoing reasons, IT IS ORDERED that the request by claimant for the use of the deposition of Ellen Saunders be denied.

February 1, 2002
New York, New York

Judge of the Court of Claims

[1] Section 4517 was amended by Chapter 268 of the laws of 2000, effective January 1, 2001, to permit a broader use of prior trial testimony.