New York State Court of Claims

New York State Court of Claims

NORRIS v. THE STATE OF NEW YORK, #2006-033-211, Claim No. 110028, Motion No. M-71788


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):

James J. Lack
Claimant’s attorney:
The Law Office of David W. McCarthy
By: David W. McCarthy, Esq. andMargaret DeVivo, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John J. Kelley, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim by Irene Norris (hereinafter “claimant”) for the alleged medical malpractice and negligence of defendant’s employees. The incident occurred on April 15, 2003, in Islandia, New York. Claimant was on a treadmill taking a stress test. Claimant alleges that she was unable to continue with the test and fell off the back of the treadmill. Claimant alleges that she was improperly monitored while performing the test.

In the course of discovery, claimant deposed Mary Datz, an employee of The Research Foundation. Datz was present during the test and aided claimant during the test. Datz is not an employee of the State and is a non-party witness. During the deposition, the witness was directed by her attorney not to answer certain questions. Datz was represented by an attorney from The Research Foundation.

Claimant moves this Court for an order to continue the deposition to have the questions which were objected to, answered now[1]. Claimant lists six questions which she seeks to have answered:
  1. What is The Research Foundation of SUNY?
  2. With respect to the treadmill, when the test commenced, where was Mrs. Atkins standing?
  3. When you say you observed that she wasn't going to last very long, what do you mean?
  4. From the time the test commenced until the time the injection was administered by Mr. Lopez, what did you observe about how Mrs. Norris was walking on the treadmill?
  5. How did you know she didn't want to stay on the treadmill anymore?
  6. Was it that she was exertionally short of breath?
Defendant opposes the motion, noting that claimant never called the Court during the deposition for a ruling and that the answers to the above questions were already given through other questioning at the deposition.

Counsel for Datz has submitted an affirmation in response to claimant’s motion. The affirmation indicates that the motion is moot because The Research Foundation consents to having Datz answer the questions.

Based upon the consent of the witness, the Court grants claimant’s motion and orders a continuation of the deposition of Mary Datz to answer the questions previously objected to. Said deposition is to be held within forty-five (45) days of the filing of this Decision and Order.

September 27, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on claimant’s motion: Notice of Motion to Compel dated May 23, 2006 and filed May 26, 2006; Affirmation in Support of David W. McCarthy, Esq. with annexed Exhibits A-C dated May 23, 2006 and filed May 26, 2006; Affirmation in Opposition of John J. Kelley, Esq. dated May 30, 2006 and filed June 1, 2006; Affirmation in Reply of David W. McCarthy, Esq. dated June 9, 2006 and filed June 12, 2006; Affirmation in Reply of Margaret DeVivo, Esq. with annexed Exhibits D-E dated June 22, 2006 and filed June 26, 2006; Affirmation of Paul Tsui, Esq. dated June 13, 2006 and filed June 27, 2006.