New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2006-015-139, Claim No. 112424, Motion Nos. M-72241, M-72242, M-72243


Motion for an order pursuant to CPLR § 3109 directing the depositions upon written questions was denied. Information sought was not material or necessary.

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):
M-72241, M-72242, M-72243
Cross-motion number(s):

Claimant’s attorney:
Anthony G. Gill, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 15, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves in three separate motions (M-72241; M-72242; M-72243) for an order pursuant to CPLR § 3109 directing the depositions upon written questions of an inmate incarcerated at the Great Meadow Correctional Facility and two correction officers employed there. For the reasons which follow, the motions are denied. The claimant is an inmate at the Great Meadow Correctional Facility and alleges in substance that he was wrongfully confined and denied the right to attend religious and other services due to the defendant's failure to provide reasonable accommodation for his disability. The claimant alleges in support of the claim that on January 24, 2006 he requested permission to attend religious services held by the Jehovah's Witnesses but has been prohibited from attending services because they are held on the second floor and he is unable to climb stairs due to his disability. He alleges that he filed a “Request For Reasonable Accommodation” on February 8, 2006, a copy of which is included as an Exhibit with his claim, which requested that ramps be constructed in various locations to enable the claimant to attend "programs, mess hall, religious services, recreation, sick call, law library, notary services, and general library due to all these programs require stairs usage." The claimant was allegedly examined by a nurse and a physician who placed the claimant on "feed in cell status" as the result of his disability and prescribed a back brace and cane. An interdepartmental communication from Dr. A. Paolano of Great Meadow Correctional Facility reflects that the claimant was to be fed in his cell and that he is to "lock on the flats" until September 7, 2006. Claimant avers in his motions that he was told by a nurse that "lock on the flats" means no climbing stairs. As the result of the defendant's alleged failure to make reasonable accommodation for his disability, claimant asserts that he remains wrongfully confined to his cell and unable to attend religious services and other activities.


Claimant seeks an order directing the deposition on written questions of Jerry Hart, an inmate at Great Meadow Correctional Facility. The proposed questions were submitted with the motion. Claimant contends in support of the motion that Mr. Hart suffers from a disability as a result of a leg amputation and that he receives unauthorized accommodation from Correction Officers Granger and Ray who take this inmate out of his cell each morning from 8:30 a.m. to 11:00 a.m. The proposed written questions include the nature of his disability and whether or not a reasonable accommodation request was formally filed and approved. Claimant asserts in only a conclusory manner that the testimony of Mr. Hart is material and necessary to the prosecution of his claim and that Mr. Hart may be a hostile witness and unavailable to testify at trial.

M- 72243 and M-72241

Claimant seeks an order directing the depositions on written questions of Correction Officers Granger (M-72243) and Ray (M-72241). The proposed deposition questions were submitted with these respective motions. Claimant contends in support of the motions that Correction Officers Granger and Ray facilitated the daily removal of Mr. Hart from his cell and that their testimony is material and necessary to the prosecution of this action because they will confirm what the claimant alleges is an unauthorized accommodation provided to Mr. Hart. The proposed written questions for both correction officers focus on whether or not other inmates, including Mr. Hart, have received reasonable accommodation and inquire as to whether inmate Hart is permitted to be released from his cell for gallery exercise and recreation. Both sets of written questions ask whether or not the same accommodation has been extended to the claimant.

CPLR 3108 permits depositions on written questions only "when the examining party and the deponent so stipulate or when the testimony is to be taken without the state." Here, there is no stipulation and the non-party witnesses whose testimony is sought are not located outside the state. On this basis alone, the motions must be denied (see, Robbins v State of New York, Ct Cl, January 9, 2001 [Claim No. 102325, Motion No. M-62803, UID # 2000-006-962]) .

In addition, CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof...." The Court of Appeals has made clear that although the words "material and necessary are to be liberally construed, the discovery sought must relate to "facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406). In order to obtain disclosure from a non-party "'special circumstances must be shown, i.e., that the information sought to be discovered is material and necessary and cannot be discovered from other sources or otherwise is necessary to prepare for trial.'" (Cerasaro v Cerasaro, 9 AD3d 663, 665 [citations omitted]; see also, Tsachalis v City of Mt. Vernon, 262 AD2d 399; Fraser v Park Newspapers of St. Lawrence, 257 AD2d 961, 962). Here, the claimant has failed to establish that the depositions sought are material and necessary to the prosecution of his claim. Whether or not another inmate receives the benefit of unauthorized accommodation for his disability has no bearing on whether the claimant was wrongfully confined or deprived of an alleged right to attend religious services. In view of the fact that the deposition questions submitted for the Court's consideration were almost exclusively related to the services provided another disabled inmate, it cannot be said that this disclosure is material or necessary to the issues in this case. Accordingly, the claimant's motions to take depositions upon written questions is denied.

December 15, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
1. Notice of motion dated August 28, 2006;

2. Affidavit of Anthony G. Gill sworn to August 29, 2006, with exhibits;

3. Notice of motion dated August 28, 2006;

4. Affidavit of Anthony G. Gill sworn to August 29, 2006 with exhibits;

5. Notice of motion dated August 28, 2006;

6. Affidavit of Anthony G. Gill sworn to August 29, 2006 with exhibits;

7. Affirmation of Saul Aronson dated October 10, 2006;

8. "Affirmation" of Anthony G. Gill dated October 31, 2006.