New York State Court of Claims

New York State Court of Claims

ROGER v. THE STATE OF NEW YORK, #2006-030-518, Claim No. 107179, Motion No. M-71086


Synopsis



Case Information

UID:
2006-030-518
Claimant(s):
KEVIN J. ROGER, Administrator of the Estate of JESSICA I. ROGER, deceased
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
ROGER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107179
Motion number(s):
M-71086
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ZWIEBEL, BRODY, GOLD & FAIRBANKS, LLPBY: JEFFREY M. BRODY, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: VINCENT M. CASCIO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
February 22, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on Claimant’s motion for an Order allowing the deposition of two (2) non-party inmate witnesses:
1,2 Notice of Motion; Affirmation by Jeffrey M. Brody, Attorney for Claimant
3-5 Filed Papers: Claim, Answer, Bill of Particulars

No Opposition Filed

Claimant, who is the administrator of the Estate of Jessica Lee Roger, deceased, alleges in Claim Number 107179 that the Defendant’s agents are liable for the death of Ms. Roger while in the custody of the New York State Department of Correctional Services (hereafter DOCS) at Bedford Hills Correctional Facility (hereafter Bedford Hills). He alleges that on or about August 17, 2002, Ms. Roger took her own life because, among other things, personnel failed to properly supervise decedent, failed to provide her with appropriate psychiatric care and services, and failed to properly train the staff. In its Answer, in addition to general denials, Defendant asserts nine affirmative defenses.

In accordance with a direction made by the Court after a discovery conference, Claimant now moves for an Order, pursuant to Civil Practice Law and Rules §3106(c), allowing the deposition of two (2) non-party inmate witnesses incarcerated at Bedford Hills.

In support of the application, Counsel for Claimant has appended his Affirmation indicating: “There are at least two (2) inmates who are imprisoned with the Department of Correctional Services, more specifically at the Bedford Hills Correctional Facility, who, upon information and belief, have information that is important to the prosecution of this claim and who potentially may be witnesses at a trial of this matter.” [Affirmation by Jeffrey M. Brody, ¶2]. Thereafter, Mr. Brody indicates in the “wherefore” clause: “. . . it is respectfully requested that the Court issue an order requiring the production of inmates Debbie Eberle (DIN# 00-G-1074) and Laurie L. Kellogg (DIN# 92-G-1356) for the purpose of having their depositions taken . . . ” [ibid.].

No position on the application has been taken by the Defendant.

DISCUSSION AND CONCLUSION
Civil Practice Law and Rules §3106(c) provides: “Prisoners. The deposition of a person confined under legal process may be taken only by leave of the court.” The requirement of an order is “. . . to prevent the disruption of prison routine and to provide a mechanism of court oversight before a correctional facility may be compelled to open its doors for the deposition of one of its prisoners . . . (citations omitted).” Nalbach v McDonald, 244 AD2d 536 (2d Dept 1997).

When the court decides whether to order the deposition of an inmate - in a manner similar to decisions on whether to issue trial witness subpoenas directing the production of inmates at trial[2] - it “. . . must determine if the expected testimony of the witness is ‘relevant and necessary’ for the preparation of the trial (EDP Medical Computer Systems v Sears Roebuck & Co., 193 AD2d 645,646 . . . [2d Dept 1993]).” Price v State of New York, 2004 WL 1631755 (Ct Cl 2004).

Moreover, when the inmate witness is a non-party, special circumstances for obtaining deposition testimony from them must be shown. Civil Practice Law and Rules §3101(a)(4); Price v State of New York, supra.

In Price v State of New York, supra, for example, where it was indicated that the inmate witnesses sought were eyewitnesses to the incident in which Claimant was injured, the Court did not find anything more than relevance by the assertion: insufficient to show that the testimony would be necessary. As that Court stated:
“. . .‘[S]omething more than mere relevance or materiality must be shown to obtain disclosure from a nonparty witness’. . . (citations omitted). To make the necessary showing, the party seeking permission to depose a nonparty inmate should spell out (or provide an affidavit establishing) the anticipated testimony; establish that the information the witness possesses is somehow unique and not merely cumulative to what claimant will relate and/or what is recorded in any documents concerning the incident, and establish that the information cannot be obtained from another source . . . ”
Based on the present application, Claimant has not established how the deposition testimony of these two inmate witnesses is material, relevant or necessary.

Accordingly, Claimant’s motion [M-71086] is hereby denied in all respects, without prejudice to a subsequent, adequately supported, motion.

February 22, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. When an inmate Claimant is proceeding pro se, he is not a person authorized to issue a subpoena, and must seek a Court order allowing the issuance of a subpoena upon proper motion. See Civil Practice Law and Rules §2302; Chopak v Marcus, 22 AD2d 825, 826 (2d Dept 1964).