New York State Court of Claims

New York State Court of Claims

WRIGHT v. THE STATE OF NEW YORK, #2002-031-042, Claim No. 99477, Motion Nos. M-64885, CM-65330


Claimant must submit to medical examination and EBT in county where action is pending.

Case Information

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:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 17, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Defendant for an order compelling Claimant to submit to deposition and an independent medical examination and to respond to Defendant's previously served discovery demands, and Claimant's cross-motion compelling the deposition of various Department of Correctional Services employees:
1) Notice of motion, filed March 20, 2002;
2) Affidavit of Gregory P. Miller, Esq., sworn to March18, 2001 (sic), with attached exhibit;
3) Notice of cross-motion, filed June 10, 2002;
4) Affirmation of Edwin T. Mulhern, Esq., dated May 29, 2002, with attached exhibits;
5) Reply affidavit of Gregory P. Miller, Esq., sworn to June 25, 2002, with attached exhibits. This is Defendant's motion to compel Claimant to appear in Erie County to give deposition testimony and to submit to an independent medical examination ("IME") by Defendant's expert medical witness. Additionally, Defendant seeks to compel responses to its previous requests for Claimant's medical records and for expert witness disclosure. In his cross-motion, Claimant seeks to compel Defendant to produce several employees to give deposition testimony. Defendant does not oppose Claimant's cross-motion and has agreed to provide each of the identified individuals who are still employed by the State of New York for deposition.

In his underlying claim for medical malpractice, Mr. Wright asserts that Defendant failed to properly diagnose and treat a fracture of his right leg incurred on November 9, 1998, while he was incarcerated at Gowanda Correctional Facility. Claimant alleges that his leg has never healed properly, even after suffering through three separate castings. In opposing Defendant's motion, Claimant, who lives in the New York City area, does not deny that Defendant has the right to both his deposition and an IME. Though this action is pending in Erie County, Claimant maintains that it would be a hardship for him to travel to the Buffalo area. He requests that these examinations be conducted in his current county of residence. Alternatively, Claimant suggests that his deposition be conducted by telephone and his IME be conducted just before trial so that he will not have to make a separate trip to the Buffalo area. Claimant also argues that this discovery dispute was created by Defendant's dilatory conduct in failing to depose and physically examine him while he was incarcerated in western New York.

Defendant argues, citing Simmons v State of New York (Ct Cl, Dec. 19, 2000 [Claim No. 94484], Bell, J., UID #2000-007-076) that Defendant has the right to depose Claimant in person in the county where the action is pending. Although this case is helpful, it is not directly on point as the Claimant in that matter had been deported to Guyana, South America. Here, Claimant still resides in the State of New York and his county of residence is, therefore, not an inappropriate location for his deposition. Rule 3110 of the CPLR provides that a deposition of a party shall be taken "within the county in which he resides or has an office for the regular transaction of business in person or where the action is pending . . . ." Additionally, the Court has broad discretion in fashioning relief in such discovery disputes to suit the particular needs of the parties before it (Saratoga Harness Racing v Roemer, 274 AD2d 887; Wheeler v Citizens Telecommunications Co. of N.Y., 274 AD2d 898, 899).

Were the only issue before me where and under what circumstances Claimant's deposition was to take place, a different conclusion might be reached. However, Defendant also seeks and is entitled to an IME of Claimant sufficiently prior to trial to permit Defendant to prepare an adequate defense. Claimant must appear in Erie County to submit to this examination. I find that it would unduly prejudice the defense of this action if Defendant were required either to fly its expert to New York City for the examination or to conduct the IME on the eve of trial. As Claimant must make himself available in Erie County for his IME in any event, I find that, upon balancing the arguments of counsel, Claimant should also submit to deposition in Erie County at or about the same time. Based upon this, it is hereby;

ORDERED, that Defendant's motion to compel Claimant to appear in Erie County to give deposition testimony and to submit to an independent medical examination is granted. Claimant shall provide Defendant, within 30 days of the filed date of this order, a minimum of four dates between that filed date and April 30, 2003, on which Claimant will make himself available in Erie County for these examinations. Defendant shall select an acceptable date from this list. The deposition and the IME shall be conducted consecutively and be completed in no more than 2 days, with all reasonable efforts being made to complete them in one day; and it is further

ORDERED, that Claimant shall respond to Defendant's demand for expert disclosure and for copies of Claimant's medical records within 30 days of the filed date of this order; and it is further

ORDERED, that Claimant's cross-motion to compel the deposition testimony of the individuals identified in Claimant's motion papers is granted to the extent that these individuals are currently employed by the State of New York. Claimant's counsel may conduct these depositions in the county where each individual resides or works, or, in the alternative, he may conduct them telephonically. These depositions are to be completed on or before April 30, 2003.

September 17, 2002
Rochester, New York

Judge of the Court of Claims