On December 21, 2005, the following papers were read on motion by Defendant for
an order compelling a further deposition of Claimant and other related
Notice of Motion, Affirmation and Exhibits Annexed
Opposing Affirmation and Exhibits Annexed
Reply Affirmation and Exhibit Annexed
Filed Papers: Claim
Upon the foregoing papers, this motion is granted to the extent noted and
Defendant is permitted to proceed in accordance herewith, irrespective of the
filing of the note of issue and certificate of readiness (see stipulation
and order herein dated February 24, 2006).
In this motion, the Defendant seeks an order compelling Claimant to respond to
certain questions which he refused to answer in an earlier deposition and to
provide authorizations for certain records. Defendant also seeks to fix the
place of such deposition as Rochester, New York, the place where this matter is
venued for trial.
This claim has a prolonged and extended history of motion practice, and
relations between the parties would never be described as harmonious. It would
be a gross understatement to characterize as argumentative the dialogue engaged
in by both counsel in the deposition transcripts which were submitted as part of
these moving papers.
Claimant was first deposed in Rochester by the Defendant on June 28, 2005. A
dispute arose thereat regarding certain questions posed by the Defendant which
Claimant initially refused to answer. After the Court’s involvement, a
second appearance in Rochester for continuation of Claimant’s deposition
took place on November 4, 2005.
Not surprisingly, another dispute took place at the November 4, 2005
deposition, and Claimant again declined to answer certain other questions put
forth by the Defendant. This motion addresses the substance and line of
questions that occurred on November 4, 2005, and concerns certain arrest and
criminal charges lodged against Claimant after his release from
I specifically decline to address the issue of whether Claimant’s counsel
allegedly improperly suggested answers to Claimant, whether there were improper
interruptions, whether objections to or refusal to answer certain questions were
wrongful, improper, or unjustified. I also decline to address Claimant’s
comments regarding the purported refusal of the Defendant to allow certain
questions of Nurse Sharp to be answered in the course of her deposition.
The motion before me is limited in its scope. I find that the Defendant is
permitted to inquire into the nature of the underlying acts relative to
Claimant’s arrest on April 22, 2005. I note that the criminal charges
were dismissed on November 15, 2005 (see Exhibit 3 to Defendant’s
reply affirmation), and indeed had not yet been dismissed at the time of his
November 4, 2005 deposition, contrary to Claimant’s suggestion thereat.
Any representations made by Claimant’s counsel that the underlying
criminal charges had been sealed or otherwise disposed of were totally reliant
upon representations made by Claimant himself (i.e., pp. 79-80 of
Defendant’s Exhibit 1) and have no bearing on my decision herein.
I note that the underlying criminal charge was for a violation of Penal Law
§190.23, “False Personation,” which deals with the alleged
misrepresentation to police officers of certain information related to
one’s identity. I realize that this charge was subsequently dismissed,
but it would appear that Claimant’s representation of the status of that
criminal charge at the November 4, 2005 deposition was inconsistent with its
proximate but nonetheless subsequent dismissal.
I find that Defendant is permitted to make the further inquiry in a deposition
into the nature of the underlying acts or other particulars of that or any other
post-release criminal proceedings, and specifically as to those questions which
Claimant refused to answer at the November 4, 2005 deposition. Within 45 days
of service of a file-stamped copy of this decision and order, the Claimant shall
provide written authorizations to the Defendant to obtain records concerning
criminal charges/arrests against Claimant since his release from State prison.
Such subsequent deposition shall be conducted in Rochester, New York, within 60
days after Defendant’s receipt of such authorizations to allow the
Defendant to have available the sought after documents at the deposition.
This decision only governs article 31 pretrial disclosure and implies no
determination whatsoever with respect to the admissibility at trial of any
matters that are to be or have been disclosed.
The motion is granted.