New York State Court of Claims

New York State Court of Claims

CUNNINGHAM v. THE STATE OF NEW YORK, #2004-030-573, Claim No. 108851, Motion No. M-68721


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:
Third-party defendant's attorney:

Signature date:
October 6, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read and considered on Claimant's motion:

1-3 Notice of Motion; Affidavit in Support of Notice to take Depositions; Affidavit upon motion for: Notice to take depositions pursuant to CPLR 3117(a); Notice to take Deposition and attachments

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibits
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 expenses.[1] 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 §3102(b).[2] 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, [See 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)[3]" 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 state; [See 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; 3133.

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 part.

October 6, 2004
White Plains, New York

Judge of the Court of Claims

[1] It is noted that Claimant had been granted a reduced filing fee pursuant to the provisions of Civil Practice Law and Rules §1101(f) and Court of Claims Act §11-a(1) by Order of Judge Sise filed February 19, 2004.
[2] Civil Practice Law and Rules §3102(b) provides "Unless otherwise provided by the civil practice law and rules, or by the court, disclosure shall be obtained by stipulation or on notice without leave of court."
[3] This provision recites the various disclosure devices available.