5,6 Filed Papers: Claim; Answer
Kenneth Cunningham, the Claimant herein, alleges in Claim number 108851 that
defendant's agents denied him a visit to his grandmother's funeral or wake held
on or about October 17, 2003 when he was an inmate at Green Haven Correctional
Facility. Specifically, he claims that the "security paperwork" prepared by
Reverend Maytose, the Protestant Chaplain, and required to allow his attendance
and give him security clearance, was lost by Reverend Maytose. Various
departmental directives are alleged to have been violated, as well as facility
rules when Claimant's grievance was denied on or about December 29, 2003.
The claim was served upon the Attorney General on or about January 22, 2004,
and filed in the Office of the Chief Clerk of the Court of Claims on January 30,
2004. In addition to a general denial in its Verified Answer, the Defendant
raises the Affirmative Defense of Claimant's alleged assumption of risk and
Defendant's qualified immunity. The Answer was filed on March 1, 2004.
It is axiomatic that Claimant is entitled to discovery of "all matter material
and necessary in the prosecution . . . of an action . . . " Civil Practice Law
and Rules §3101. All the various discovery devices contained in Article 31
of the Civil Practice Law and Rules are generally available to an inmate
Claimant, although practical concerns premised on an inmate's incarcerated
status may also prevail. Civil Practice Law and Rules §3102(a). Discovery
should proceed without Court intervention for the most part.
Although it is not exactly clear from Claimant's submission, based upon the
Notice to take Deposition appended to the moving papers, Claimant appears to be
asking the Court to direct the deposition of non-party witnesses. He lists Ms.
Estelle Cunningham - who is Claimant's mother - Ms. Gloria Rosario, a former
Corrections Counselor at Green Haven; and Mrs. Delores Thorton, Deputy
Superintendent of Programs, who appears to be a current employee. The same
notice asks that the Assistant Attorney General assigned to the claim produce
certain documents, including records of Claimant's grievance procedure, copies
of facility directives, the identity of the correction officer who was
reportedly given the paperwork for Claimant's funeral visit by Reverend Maytose,
and Reverend Maytose's personnel history, among other things.
In her Affirmation in Opposition to the motion the Assistant Attorney General
notes that because Claimant is incarcerated he would be required to provide
payment for a court stenographer and make prior arrangements for any deposition
before one could be scheduled. Counsel also indicates that the Defendant will
not consent to "assisting the scheduling of the deposition in any fashion."
This summary approach to opposing Claimant's application is neither helpful to
the Court or to the discovery process.
Unless the Court has ordered otherwise, Civil Rights Law §79 - the statute
authorizing inmates to commence lawsuits - provides that the State ". . . shall
not be liable for any expense of or related to any such action or proceeding . .
. " Generally, all expenses of a deposition must be borne by the party taking
it, including inmates. Court of Claims Act §18; Civil Practice Law and
Rules §3116(d). In the case of an inmate seeking to depose an employee of
New York State Department of Correctional Services (hereafter DOCS), or
otherwise seeking the assistance of DOCS - even if only by implication given the
mechanics of an inmate's incarceration - DOCS
" . . . shall not be required to perform any services related to such action or
proceeding . . . unless and until the Department has received payment for such
services." Civil Rights Law §79(3)(b). Even if Claimant had been granted
permission to proceed as a poor person pursuant to Civil Practice Law and Rules
Article 11, he would still be responsible for payment of all
A deposition is not a "proceeding"
within the meaning of Civil Practice Law and Rules §1102. See
Lester v Lester
, 69 Misc 2d 528, 529 (Sullivan Co Sup Ct 1972). Being
granted poor person status does not automatically confer entitlement to payment
of all expenses. See Wilson v State of New York
, 101 Misc 2d 924,
926 (Ct Cl 1979).
Where a non-party witness is involved - just as when an inmate seeks deposition
of a fellow inmate allowable only on Court Order [See Civil Practice Law
and Rules §3106(c)] - there must be a showing of special circumstances
warranting the deposition. Civil Practice Law and Rules §3101(a)(4).
The Claimant does not need Court permission in order to seek the deposition of
State agents or employees. Civil Practice Law and Rules
A proper Notice to take
Deposition served on the Attorney for the Defendant - here the Attorney General
- is, however, required, as well as tender of all associated expenses. Thus,
while the Assistant Attorney General correctly notes that the State need not
assist in the matter, and may select which individual is actually produced,
Civil Practice Law and Rules §3106(d)], the Attorney General's
Office is nonetheless counsel of record for the State and its agents, and must
accept service of a properly served Notice.
In this case, the Notice Claimant appears to be serving by this motion is
unclear. It mentions "CPLR 3102(a)
" as its
authority, and asks for "oral depositions on written questions" of the
individuals mentioned. It is noted that oral depositions on written questions
are permitted when there has been a stipulation, or the deponent is out of
Civil Practice Law and Rules §3108] and would be
inapplicable here. Intermingled with this Notice are document discovery
requests that have been partially responded to by the Defendant in the
Affirmation in Opposition as well.
With respect to Claimant's mother, there is no reason advanced as to why the
State would need to be involved at all or indeed why the deposition of Ms.
Cunningham, a non-party, is necessary. With respect to Ms. Rosario, again,
there has been no showing of special circumstances. As noted, the Court need
not be involved in this process where current State employees are involved,
however, given the lack of clarity and the apparent failure to provide for a
place for any deposition, and the payment of expenses, and despite Defendant's
failure to cross- move for a protective order, [see Civil Practice Law and Rules
§ 3103] the Court nonetheless finds that the Notice served with respect to
the current State employee is not effective.
The Court cannot help but note that the more efficient and economical discovery
device of interrogatories may be what the Claimant intended by this request.
See Civil Practice Law and Rules §§3130; 3131; 3132;
As noted by the Assistant Attorney General, the cost for reproduction of
Claimant's grievance packet is $3.50. Defendant is directed to provide Claimant
with same upon payment of the fee. If there is an investigative report by the
IGRC regarding Claimant's funeral visit then Defendant is directed to produce it
upon Claimant's payment of copying expenses. Claimant's other requests
concerning Reverend Maytose's personnel file or prior involvement in the funeral
visits of others, etc., are either denied as outside the scope of discovery or
denied because they do not comply with Civil Practice Law and Rules §3120
concerning the discovery and production of documents.
Accordingly, Claimant's Motion number M-68721 is granted in part and denied in