New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2006-010-045, Claim No. 110489, Motion No. M-72545


Synopsis


Defendant’s motion for transportation and lodging expenses to attend an out-of-state deposition of a non-party witness is denied.

Case Information

UID:
2006-010-045
Claimant(s):
ALVINA DAVIS
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110489
Motion number(s):
M-72545
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
LARKIN, AXELROD, INGRASSIA & TETENBAUM, LLPBy: James Alexander Burke, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 2, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on defendant’s motion for transportation and lodging expenses to attend an out-of-state deposition of a non-party witness:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits........................1

Claimant’s Affirmation in Opposition and Exhibit...................................................2

Defendant moves to compel claimant to pay defendant’s costs of travel and lodging for the purposes of taking the deposition testimony of a non-party witness whom claimant seeks to depose in Herndon, Virginia. Alternatively, defendant seeks a protective order.

In support of its application, defendant cites to the Court of Claims Act §18 which provides:
“When testimony is taken on commission or deposition at the instance of the claimant, the expense thereof including the fees of the commissioner, shall be paid by the claimant; and when taken at the instance of the state, such fees and all expenses incurred by the attorney-general shall be paid by the state [emphasis added].”

Defendant concedes that, “[m]y research into the legislative history was not helpful on this issue” (Defendant’s Supporting Affirmation at ¶4). Defendant only cites an unreported Court of Claims decision from 1994 which neither cites to §18 of the Court of Claims Act nor cites any supporting case law for its direction that claimant pay defendant’s transportation expenses incurred in the taking of a deposition of an out-of-state witness. This Court is not bound by the decision of another judge in a concurrent position nor is this Court persuaded by the cited decision. Rather, this Court finds that §18 of the Court of Claims Act is consistent with CPLR 3116(d) which provides, “unless the court orders otherwise, the party taking the deposition shall bear the expense thereof [emphasis added].” The CPLR Commentary advises that the words “expense thereof” used in CPLR 3116(d) was not intended to include costs incurred by a party or attorney for attendance at a deposition (see Connors, Practice Commentaries [2005], McKinney’s Cons Laws of NY, Book 7B, CPLR C3116:5, at 165). So too here, this Court finds that “expense thereof” as used in the Court of Claims Act §18 was not intended to include costs incurred by a party or attorney for attendance at a deposition. Notably, defendant had failed to cite to any appellate authority in support of its position.

Accordingly, the Court denies defendant’s application in its entirety and claimant shall bear only those customary expenses associated with the taking of the deposition of the witness. The Court has found no persuasive authority to support an order directing claimant to bear the extraordinary expenses of defendant’s costs for transportation and lodging.

Motion DENIED.

January 2, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims