New York State Court of Claims

New York State Court of Claims

NORRIS v. THE STATE OF NEW YORK, #2006-033-212, 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 29, 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 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 Ms. 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, Paul Tsui, has submitted an affirmation in response to claimant’s motion. Mr. Tsui indicates that The Research Foundation is not under the jurisdiction of the Court of Claims. The Research Foundation is a private corporation existing under the laws of the State of New York. He further states that the instant motion was not made in the correct forum. However, the affirmation indicates that the motion is moot because The Research Foundation consents to having Datz answer the questions.

The Court is very grateful to Mr. Tsui for his education of the Court. Without his help the Court would have blundered about merely using the Court of Claims Act and the CPLR as its guide. It was the Court’s impression that Datz was deposed as a non-party witness, permissible pursuant to CPLR 3106. Instead of a subpoena being issued, the Attorney General’s office was able to produce Datz via a request to the separate and private Research Foundation. The Court presumes that Mr. Tsui would have confirmed that in any case where he was submitting his client to a deposition, the court would have been able to obtain jurisdiction over his client or its employees. Be that as it may be, Datz did appear for the deposition in this case. During the course of the deposition, claimant’s counsel asked the above stated questions. In response to those questions, objections were made by Mr. Tsui and he directed Datz not to answer the questions; the very same questions to which he now consents to having his client answer. After the deposition ended, and claimant’s attorney was not satisfied with the non-response to the above questions,[2] he sought, by this motion, permission to continue this non-party’s deposition, since the claim was being heard in this Court. Instead, according to Mr. Tsui, claimant should have began an equity action against Datz in Supreme Court to obtain personal jurisdiction over her.

The Court will now return Mr. Tsui’s favor of education by providing some useful knowledge. As stated above, parties to a lawsuit have the right to depose a witness (CPLR 3106). If the separate and private non-party does not volunteer to appear (as in the instant case), the party seeking the witness shall subpoena the person on twenty days notice. A court may issue a subpoena to compel a person to testify (CPLR 2301). In the event a person fails to comply with a judicial subpoena, said disobedience is punishable by contempt (CPLR 2308). Mr. Tsui has failed to show anywhere that this Court lacks the authority to compel his separate and private client to testify in this matter.

Oddly disturbing to this Court is Mr. Tsui’s change of heart from the deposition to the time that he penned his affirmation in response to the instant motion as to his objections to the questions. If one were of a cynical mind, it could be said that his actions were done to delay and/or obstruct this case from going forward. However, this Court is sure that even Mr. Tsui is aware conduct of that nature could be deemed as frivolous under Part 130 of the Rules of the Chief Administrator, and further that this Court has the right to sanction such conduct under the Uniform Rules for the Court of Claims §206.20, which could allow this Court the right to sanction a party up to $10,000.00 for each offense (i.e. the six offenses committed at the deposition). Here endeth the lesson.

The Court grants claimant’s motion and orders a continuation of the deposition of Mary Datz to answer the questions previously objected to. The deposition shall be completed within twenty (20) days of the filing date of this Decision and Order and the parties must make arrangements to conduct the deposition at the Court of Claims, New York State Office Building, Room 3B-46, 250 Veterans Memorial Highway, Hauppauge, New York 11788.

September 29, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers were 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.
[2].After reviewing the transcript, the Court finds that the questions were proper. Furthermore, the context in which some of the questions were asked was different from other previously asked and answered questions.