New York State Court of Claims

New York State Court of Claims

FERRAN v. THE STATE OF NEW YORK, #2002-028-070, Claim No. 103026, Motion No. M-65530


Synopsis


Defendant's motion for sanctions pursuant to 22 NYCRR Part 130 is denied.


Case Information

UID:
2002-028-070
Claimant(s):
MARK FERRAN & NADIA FERRAN
Claimant short name:
FERRAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103026
Motion number(s):
M-65530
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MARK FERRAN, pro se NADIA FERRAN, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. Cagino, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 20, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant's motion for sanctions pursuant to 22 NYCRR Part 130:


1) Notice of Motion and Supporting Affirmation of Assistant Attorney General Paul F. Cagino, filed July 22, 2002, (Cagino Affirmation), with annexed Exhibits A-D;


2) Affidavits in Opposition of Nadia Ferran (Nadia Affidavit) and Mark Ferran with annexed Exhibit (Mark Affidavit) filed August 2, 2002 and Claimant's Memorandum of Law; and


3) Reply Affirmation of Assistant Attorney General Paul F. Cagino, filed August 8,

2002, (Cagino Reply).


FILED PAPERS: Verified Claim, Answer.

Defendant seeks sanctions pursuant to 22 NYCRR Part 130 in the amount of $75.00, representing the stenographer's appearance fee, due to Claimant's (Mark Ferran) failure to appear for his own deposition. Claimant opposes the application stating that he received medical treatment the evening immediately preceding the scheduled deposition and that such fact was conveyed via the co-Claimant to the Assistant Attorney General on the day of the deposition.

On June 10, 2002 Defendant caused to be served a Notice of Examination Before Trial upon Claimant for the taking of Claimant's testimony on July 3, 2002 at the offices of the Attorney General in Albany, New York (see Cagino Affirmation, ¶ 3, Exhibit A). Defendant asserts that "Claimant, Mark Ferran, did not appear; did not move against the Notice of Examination Before Trial; and did not contact the Office of the Attorney General at any time to indicate any difficulty in attending the deposition" (Id. at ¶ 10).

Claimants, who are mother and son, each submitted an affidavit in opposition. The mother's affidavit states that she did contact the Assistant Attorney General by telephone the day of the deposition, she believes she did so in the morning (Nadia Affidavit, ¶ 3), and conveyed the message that her son would be unable to attend the scheduled deposition (Nadia Affidavit, ¶ 5)[1]. She further avers that the Assistant Attorney General requested that he be provided with documentation to confirm Mark's trip to the emergency room (Id. at ¶ 7)[2]. The son's affidavit, while perhaps with a flair for the dramatic, details an injury to his finger which resulted in a visit to with a subsequent 8:15 p.m. discharge from an emergency room in Alexandria Bay, New York.

Notwithstanding the aspersions cast in the parties respective submissions (see, Nadia Affidavit, ¶ 15; Mark Affidavit ¶ 20; and Cagino Reply ¶ 3) and while the record suggests that Claimant Mark Ferran could have handled his nonappearance in a more direct and timely fashion, the record fails to establish that sanctions are warranted under the circumstances set forth in these submissions. The cases cited by Defendant are distinguishable in that the instant application was not made pursuant to CPLR 3126, nor does it present a situation where Claimant has repeatedly failed to appear for the deposition or otherwise delayed responding to discovery. The Court further notes that the notice of examination before trial, although not objected to, provided inadequate notice of the examination before trial (see, CPLR 2103 [add five days for mailing] and CPLR 3107 [ twenty days notice]).

Accordingly, the Defendant's motion is DENIED.

The parties shall appear for a pre-trial conference on January 8, 2003 at 12:30 p.m. in Courtroom 2, 7th floor, Justice Building, Empire State Plaza, Albany, NY.

December 20, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The moving papers were silent with respect to this conversation. The Reply papers only contest the time of the call, not the content.
[2] Although the discharge record and a pharmacy receipt were annexed to the Mark Affidavit, there is no indication in the papers whether such were provided to the Assistant Attorney General prior to the instant application.