New York State Court of Claims

New York State Court of Claims

PRYCE v. THE STATE OF NEW YORK, #2006-009-041, Claim No. 109542, Motion No. M-71505


Synopsis


Claimant’s motion for an order directing a deposition of the claimant be conducted by telephone or other remote electronic means was denied.

Case Information

UID:
2006-009-041
Claimant(s):
NEVILLE PRYCE
Claimant short name:
PRYCE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109542
Motion number(s):
M-71505
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
WALLACE & ASSOCIATES, P.C.
BY: Larry Wallace, Esq.,Of Counsel.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
August 8, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an order directing that a deposition of the claimant be conducted by telephone or other remote electronic means pursuant to CPLR Rule 3113(d).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation 1,2


Affirmation in Opposition, with Exhibits 3

In this medical malpractice claim, claimant alleges that medical personnel at Cape Vincent Correctional Facility failed to diagnose and treat his glaucoma from April, 2002 to May, 2004, while he was incarcerated at that facility. His claim was filed with the Clerk of the Court on June 28, 2004, but claimant was subsequently deported in November, 2005, following a felony conviction. Claimant currently resides in Jamaica, and according to his counsel’s affirmation (see Item 2), claimant has been denied permission to re-enter the United States.

Accordingly, claimant has requested that a video or audio deposition be conducted, pursuant to the express authorization provided by § 206.11 of the Uniform Rules for the Court of Claims. Claimant has further requested that this deposition be conducted pursuant to CPLR Rule 3113(a)(3), which governs depositions conducted in a foreign country, and that the deposition be taken by “telephone or other remote electronic means” as permitted by Rule 3113(d).

In her affirmation in opposition (see Item 3), defendant’s attorney has specifically waived any deposition of the claimant prior to trial, and has not agreed to conduct any such deposition by any means permitted by Rule 3113(d).

Although the Court has the authority to regulate the use of disclosure devices pursuant to CPLR 3101(a), the specific language of CPLR Rule 3113(d) provides that “[t]he parties may stipulate that a deposition be taken by telephone or other remote electronic means”. In this case, however, it is apparent that the parties will not enter into any such stipulation, and the defendant, in fact, has waived any deposition of the claimant. This Court, therefore, will not order that a telephonic deposition be conducted over defendant’s objection.

In her answering papers, defendant’s attorney has also requested that this claim be dismissed. This application, however, is not properly before the Court at this time and has not been considered. Accordingly, it is

ORDERED, that Motion No. M-71505 is hereby DENIED.


August 8, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims