This is claimant’s motion for an order (1) compelling defendant to
undertake its “best efforts” to produce former employees for
depositions, (2) “reserving to claimant the right to move to preclude
defendant[’s] use of [former employee] witness testimony at trial, and
(3) issuing commissions to take the depositions of four former employees of
the defendant. Defendant opposes the motion in part.
This medical malpractice claim arises from the birth of the infant claimant.
The former employees whose depositions claimant seeks are Antonia Pinney, M.D.,
Marian Zinnante, M.D., Anthony Royek, M.D. and Pamela Grant, M.D., all of whom
played roles in the delivery. Claimant’s counsel advises that the four
physicians currently reside, respectively, in New Jersey (Dr. Pinney), Texas
(Dr. Zinnante), Georgia (Dr. Royek) and Hawaii (Dr. Grant).
Claimant requests that the court impose a “best efforts obligation”
on defendant, requiring “at minimum, an out reach (sic) by defendant to
their former employees to ascertain their willingness to come back within the
jurisdiction for deposition purposes, inclusive of an offer by the defendant to
provide counsel at the deposition and coupled with an offer to provide travel
expenses of their former employees back to New York” (Supporting
Affirmation ¶ 14).
The general rule is that a party is not obligated to produce former employees,
not under its control, for depositions (Schneider v Melmarkets, 289 AD2d
470 [2d Dept 2001; Sparacino v City of New York, 85 AD2d 688 [2d Dept
1981]). Nevertheless, claimant argues that the court should depart from this
rule and impose upon defendant obligations beyond supplying the last known
addresses of the witnesses whose testimony is sought based on the
“interest of justice” and “fundamental fairness” since
the former employees are “the active participants who are averred as
having actually caused claimant’s injuries” (Supporting Affirmation,
¶ 15). Claimant reasons that the State is obligated to indemnify and
defend the four physicians pursuant to the Public Officers Law and that
defendant’s “obligation to employ best efforts in the manner
delineated in the moving papers arises as a corollary to the duty to indemnify
and defend” (Reply Affirmation, ¶ 7).
Claimant’s argument is misplaced. Whatever duty to defend or indemnify
the four physicians might or might not exist is irrelevant to this claim, since
the sole defendant in this action is the State of New York. Claimant has not,
apparently, brought actions against these physicians, as would be her right
(see Morell v Balasubramanian, 70 NY2d 297). Had she done so, the
State of New York, perhaps, would have the duty to provide a defense and/or the
duty to indemnify. Additionally, had claimant sued these physicians, she would
be able to depose them as parties without having to deal with the additional
burdens that arise from a non-party deposition of an out-of-state witness. With
claimant having sued only the State, there is no action for which they require
defense or indemnification and they are mere witnesses. The fact that they are
the people whose actions form the basis of the claim of State liability is
irrelevant. Every claim seeking to impose liability against the State
necessarily is based on an allegation that some individual, for whose actions
the State is responsible, did something wrong. The State can only act through
its officials and employees. Contrary to claimant’s implicit contention,
there is no legal principle that requires that the State be responsible for the
production of former officials and employees whose alleged conduct is the basis
of the claim of State liability, notwithstanding claimant’s citation to
two Fourth Department decisions (MS Partnership v Wal-Mart Stores, 273
AD2d 858  and Gehen v Consolidated Rail Corp., 289 AD2d 1026
). Neither decision states the basis for the affirmance of the respective
Supreme Court decisions and neither decision indicates that the party seeking
the deposition was able to locate the witness on its own, as is the case here.
Moreover, in the Gehen decision, the court noted “[a]ny expenses
incurred by a party in connection with discovery should be paid by the party
incurring the expenses” (289 AD2d 1026, 1027).
Accordingly, the application to compel defendant to use its best efforts to
arrange for depositions of its former employees is denied.
Claimant may take these four depositions by either open or sealed commissions.
Defendant objects to the relief sought on this motion because claimant requests
both open and sealed commissions for each witness, apparently not yet having
decided how she wishes to proceed in each case. Defendant’s objection is
well-taken. Claimant, in each case, should decide whether she wishes to proceed
on the basis of an open or closed commission; then examine, in addition to New
York law, the applicable law in each of the four jurisdictions where the
witnesses are located (Georgia Code §§ 24-10-110 to 24-10-112; Texas
Civ. Prac. & Rem. Code §20.002; Hawaii Revised Statutes § 624-27;
New Jersey Rules of Court Rule 4:11-4); and prepare the appropriate documents,
which then should be submitted to the court, on five days notice to the
Accordingly, the motion is denied.