New York State Court of Claims

New York State Court of Claims

MURRAY v. THE STATE OF NEW YORK, #2005-032-022, Claim No. 108470, Motion No. M-69251


Synopsis


Claimant, who was previously granted permission to conduct an examination before trial of another inmate, was under the mistaken impression that, once such permission had been granted, the defendant State of New York was responsible for making all arrangements for the deposition. His motion to strike the defendant's answer for failure to make such arrangements is denied.


Case Information

UID:
2005-032-022
Claimant(s):
JOEL MURRAY
Claimant short name:
MURRAY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108470
Motion number(s):
M-69251
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Joel Murray, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Saul Aronson, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 24, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has moved to strike defendant's answer and/or to preclude defendant from presenting evidence on the ground that defendant failed to comply with duties imposed by a prior decision and order of this Court (Murray v State of New York, #2004-032-028, Claim No. 108470, Motion Nos. M-67833, M-67904, April 26, 2004, Hard, J.). In that decision and order, claimant was granted permission to conduct an examination before trial of another inmate, Deshawn Seally. It was noted in that decision that depositions of inmates must be conducted under the rules promulgated by the Department of Correctional Services (DOCS) and that responsibility for the expenses of conducting such depositions rests with the party requesting them, even if that party is an inmate.

In granting claimant permission to depose the inmate, the Court's order satisfied the requirements of CPLR 3106(c). It was then up to claimant, not defendant, to carry out the steps needed to arrange for such a deposition and to tender the costs associated with that procedure. He must prepare a subpoena of the deponee, which the Court will sign (CPLR 3106[b]; 44A NY Jur 2d Disclosure § 197), and he must serve notice of the examination on all other parties (CPLR 3107).

The party who subpoenas the inmate to be deposed is responsible only for paying the statutory witness fee and mileage allowance (CPLR 2303). As this Court has previously noted:
As with the examinations before trial of any witness, the responsibility for paying the expenses incurred in conducting depositions of incarcerated persons rests with the party requesting the examination, even if that party is an inmate himself and that inmate qualifies for poor person's status pursuant to CPLR 1101. Whenever the deposition, or court appearance, of a nonparty inmate is ordered, any additional costs associated with transporting that prisoner and guarding him or her during transport, remain the responsibility of the Department of Correctional Services ("DOCS"). The party who subpoenaed the inmate is responsible only for paying the statutory witness fee and mileage allowance (CPLR 2303).
(Price v State of New York, 4 Misc 3d 1008(A), 2004 WL 1631755 [Ct Cl 2004] [citations omitted].)

The Attorney General and DOCS are required to cooperate with claimant, as they would in any case where the deposition of an inmate had been ordered, but it is not up to defendant to make the arrangements and take all steps to assure that a Court ordered deposition takes place. Claimant's motion, which is clearly based on an assumption that it was defendant's duty to set up the deposition, must therefore be denied.




February 24, 2005
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimant's motion to strike defendant's answer and/or to preclude defendant from presenting evidence:

1. Notice of Motion and Supporting Affidavit of Joel Murray, pro se;

2. Affirmation in Opposition of Saul Aronson, Esq., AAG;

Filed papers: Claim; Answer