New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2006-013-013, Claim No. 96846, Motion No. M-71012


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


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 relief:

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 incarceration.

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.

April 27, 2006
Rochester, New York

Judge of the Court of Claims