New York State Court of Claims

New York State Court of Claims

ARCE v. THE STATE OF NEW YORK, #2003-030-556, Claim No. 107192, Motion No. M-66703


Synopsis


Pro se inmate's motion for an order permitting family member to tape record deposition of claimant denied.

Case Information

UID:
2003-030-556
Claimant(s):
JULIO ARCE Caption has been amended to reflect the only proper defendant.
Claimant short name:
ARCE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107192
Motion number(s):
M-66703
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
JULIO ARCE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
July 18, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers, numbered 1 to 5, were read and considered on Claimant's motion for an Order "to permit a family member to conduct a tape recorded deposition at a private setting at Clinton CF without any form of overhearing pursuant to C.P.L.R. by bringing a personal tape recorder to a visit for my deposition not to be altered etc..." :
1,2 Notice of Motion, Jury Trial demanded (sic) by Julio Arce, Claimant

  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General and accompanying exhibit
4,5 Filed Papers: Claim, Answer

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Julio Arce, the Claimant herein, alleges in Claim Number 107192, filed with the Office of the Chief Clerk on January 13, 2003, that Defendant's agents used excessive physical force to restrain him when he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing) on December 20, 2002; either negligently or intentionally lost his personal property; and wrongfully confined him.

In the present motion, it is unclear exactly who Claimant wishes to depose - indeed it seems he wishes to have his own testimony taped - nor are any reasons advanced for any depositions.

As noted by the Assistant Attorney General in her Affirmation in Opposition to this motion, Civil Practice Law and Rules §3106(c) provides that "[t]he deposition of a person confined under legal process may be taken only by leave of the court." Such leave is granted only upon a showing of materiality and necessity, given the constraints of cost, and security concerns. See, Sebastiano v State of New York, 112 Misc 2d 1027 (Ct Cl 1981). As noted in the commentaries to Civil Practice Law and Rules §3106, "[p]rison doors are not thrown open so lightly as to enable a mere notice to do the job." David Siegel, Practice Commentaries C3106:6. The provision's purpose "...is to prevent the disruption of prison routine and to provide a mechanism of court oversight before a correctional facility may be compelled to open its doors for the deposition of one of its prisoners." Nalbach v McDonald, 244 AD2d 536 (2d Dept 1997). Generally, far less intrusive discovery devices - such as interrogatories - may be appropriate. See, Civil Practice Law and Rules §§3130,3131,3132,3133.

Additionally, since it is likely that non-party witnesses - such as fellow inmates - may be among those Claimant wishes to depose, leave would be granted only upon a showing of special circumstances. See, generally, Civil Practice Law and Rules §3101.

Claimant has not offered any explanation of who it is he wishes to depose, or what materiality or relevance such discovery would have to the prosecution of his Claim.

Accordingly, Claimant's motion for an order allowing the deposition of unknown individuals is hereby in all respects denied.


July 18, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims