New York State Court of Claims

New York State Court of Claims

SCOTTLAND v. THE STATE OF NEW YORK, #2005-028-510, Claim No. 105828, Motion No. M-69311


Synopsis



Case Information

UID:
2005-028-510
Claimant(s):
DENISE SCOTTLAND, individually and as ADMINISTRATRIX OF THE ESTATE OF BEETHAVEAN SCOTTLAND, Deceased The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
SCOTTLAND
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105828
Motion number(s):
M-69311
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
THE COCHRAN FIRMBY: Kim Mazzatto, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Gail Pierce-Siponen, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 31, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

In reaching its decision on the instant motion, the Court has read and considered the following papers:

(1) Order to Show Cause for permission to take an oral examination of non-resident, non-party witnesses Larry Hazzard, Tom Kaczmarek, George Jones and Fred Ucci, and for subpoenas ad testificandum for said parties dated November 3, 2004 and filed on November 1, 2004;

(2) Supporting Affirmation of Kim Mazzatto, Esq., dated September 30, 2004 received (Mazzatto Affirmation);

(3) Affirmation in Response of Gail Pierce-Siponen, Assistant Attorney General together with Exhibits A-D, dated November 8, 2004 and filed on November 9, 2004 (Pierce-Siponen Affirmation).

The present Claim is based upon the death of Beethavean Scottland, while engaged in a boxing match aboard the USS Intrepid.

The attorney for the Claimant argues that the oral depositions are material and necessary to the proper prosecution of the Claim.

The State's opposition to the application is based upon the failure of Claimant's attorney to seek these depositions at an earlier date and the lack of necessity and materiality of the proposed depositions.

Mindful of the liberality of the Courts in permitting discovery (Allen v Crowell-Collier Publ. Co., 21 NY2d 403), the Court grants the Claimant's application notwithstanding its tardiness.

The test of "material and necessary" is in actuality one of usefulness and reason; thereby striking a balance between the burden of discovery and the merits of the Claim (see Belco Petroleum Corp. v AIG Oil Rig, 179 AD2d 516). Here the Court finds that the requests are reasonable and may provide information as to the condition of the Claimant's Decedent at various stages of the match.

Claimant to submit an Order on notice.



January 31, 2005
Albany, New York

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