New York State Court of Claims

New York State Court of Claims

LEVINE v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, #2003-028-547, Claim No. 102954, Motion No. M-66674


Synopsis


Case Information

UID:
2003-028-547
Claimant(s):
STEPHEN LEVINE and ANN LEVINE
Claimant short name:
LEVINE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102954
Motion number(s):
M-66674
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
SILVERSTEIN & HURWITZ, P.C.BY: Clifford J. Stern, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Daniel J. Sweeney, Esq.Trial Counsel
Third-party defendant's attorney:

Signature date:
June 12, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion pursuant to CPLR 3101 and 3108

for an open commission authorizing the taking of the deposition on oral questions of an out-of-state nonparty witness, Juarez Berger

1) Notice of Motion and Supporting Affirmation of Clifford J. Stern, Esq., (Stern Affirmation) filed on April 14, 2003 with annexed Exhibit A;


Opposition Papers: NONE.

The instant claim arises from an accident on the New York State Thruway in October 1999 in which Claimant suffered injuries which are alleged to have impaired his memory (see Stern Affirmation, Exhibit A). As a consequence, the Claimant seeks open commission to take the deposition of Juarez Berger, the operator of the vehicle with which Claimant collided (Stern Affirmation ¶ 2).

In light of the Claimant's apparent memory difficulties, it does seem likely that Mr. Berger may have material and necessary information relative to the happening of this accident and perhaps other issues yet to be resolved. (Morgan v Dell Publ. Co., 185 AD2d 876). As such, the Court does grant Claimant's application for an open commission.

Motion No. M-66674 is hereby GRANTED.

Claimant is directed to advise the Court upon completion of the deposition of Mr. Berger.


June 12, 2003
Albany, New York

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