Harry Page has a claim against the State of New York alleging that on August 5,
2002, he fell on the running track of the gymnasium at Arthur Kill Correctional
Facility, in Richmond County, due to an accumulation of water on the track. A
late claim motion pursuant to §10.6 of the Court of Claims Act had been
granted by Decision and Order signed February 4, and filed February 22, 2005.
However, before the deposition of Mr. Page could be taken, claimant was
“deported in June 2005 and presently resides in Trinidad. Upon
information and belief, he is not permitted to re-enter the United States . .
.” (Affirmation of claimant’s counsel, third unnumbered page).
Claimant moves here for an Order seeking to advance discovery, proffering
several alternative methods: i) directing defendant to conduct its deposition
of the claimant on written questions under CPLR Rule 3108; ii) requesting
issuance of an open commission or letters rogatory for the defendant’s
taking of the deposition under Rule 3108; iii) directing defendant to question
claimant via written interrogatories pursuant to CPLR §3130; or iv)
finally, that no questioning of Page be conducted, but that his sworn proposed
claim appended to his late claim motion and the August 20, 2002 affidavit of a
purported witness, Shawn Thomas, be used in lieu thereof. For its part,
defendant opposes claimant’s motion and cross-moves per CPLR 3124 to
compel disclosure seeking an Order directing Mr. Page to appear in New York
County for a deposition and for a medical examination by a physician designated
Claimant cites three cases: Bator v Hungarian Commercial Bank of Pest,
275 AD 826, 90 NYS2d 35 (1st Dept 1949); Matter of Stonchius, 209 AD2d
705, 619 NYS2d 960 (2d Dept 1994); and Pagan v Magrill Brothers,
Inc. 244 AD2d 183, 664 NYS2d 36 (1st Dept 1997).
In the Bator case, plaintiff, a New York resident and former Hungarian
national, had sued the bank that employed him in Hungary for breach of his
employment contract in Supreme Court, New York County. The First Department
allowed defendant to take the testimony of two executives of the Hungarian bank
in Hungary on written interrogatories, modifying the Order below for an open
commission to be held in Switzerland. The First Department left open for the
trial court whether, upon return of the interrogatories, that if such were
inadequate, plaintiff would be allowed to move again for an open
In the Stonchius matter, the Second Department upheld an Order granting
leave to depose “certain witnesses in Lithuania and elsewhere upon open
commissions pursuant to CPLR 3108,” modifying it to add some limitation on
travel expenses, but otherwise little detail is contained in the reported case.
209 AD2d at 705, 619 NYS2d at 960. Pagan, supra, is also sketchy;
what we do know is that the First Department upheld the issuance of an open
commission for the controller of a company.
Defendant opposes claimant’s alternatives, maintaining that the
deposition of a party must take place in the county where the action is pending.
Hoffman v Kraus, 260 AD2d 435, 688 NYS2d 575 (2d Dept 1999). According
to defendant, cases that allow open commissions and other long-range variants
are used to avoid hardship, and do not apply to the circumstances here:
What is sought here is the use of Mr. Page’s deposition (or written
questions or interrogatories) as evidence in chief “at trial in lieu of
Claimant’s presence” (cl Affirmation, sixth unnumbered page; see
also the fifth unnumbered page). Subparagraph (ii) of CPLR 3117(a)(3) permits
the use of the deposition of any person by any party as direct evidence if the
witness (including a party
) is more than one
hundred miles away, “unless it appears that the absence of the witness was
procured by the party offering the deposition.” Defendant relies upon
Simmons v State of New York
(unreported, claim no. 94484, motion nos.
M-62393 and CM-62625, UID #2000-007-076
where the claimant was a former inmate deported to Guyana, in which Judge Bell
stated, “Here, the court finds that claimant’s current inability to
return to New York to pursue his claim is not the result of an acceptable
substantial hardship, but was caused by his own conduct” (def Affirmation,
exh B at p. 5).
No precedent has been offered by claimant, or otherwise located, that would
permit the use of a deposition, written questions or interrogatories under the
circumstances obtaining in this matter.
Compare, for example, Dailey v Keith
, 306 AD2d 815, 760 NYS2d 715 (4th
Dept 2003), affd
1 NY3d 586, 774 NYS2d 105
and McGuigan v Carillo
, 150 Misc
2d 881, 578 NYS2d 389 (Sup Ct, Queens County 1991).
Moreover, under our
circumstances, there is no basis to implicate subparagraph (iii) of CPLR
3117(a)(3), which allows the use of deposition testimony if the witness is in
prison, or unable to testify at trial due to age, sickness or infirmity. The
representations here by his lawyer as to Mr. Page’s prospects for ever
returning to the United States (he is a “permanent
) are stronger than those set
out in the Simmons
case where Judge Bell gave Mr. Simmons six months to
appear in New York State before subjecting his case to dismissal. The
by claimant’s counsel cannot at this time save
Page’s case from dismissal, but nor does this Decision and Order
necessarily mean that if Mr. Page lawfully presents himself in the State of New
York, that the claim arising from his accident of August 5, 2002 could not,
subject to the prevailing circumstances, properly be reinstated.