New York State Court of Claims

New York State Court of Claims

MAHR v. THE STATE OF NEW YORK, #2006-036-552, Claim No. 110410, Motion No. M-71501


Claimant’s motion to compel defendant to use its “best efforts” to secure depositions of former State employee physicians is denied.

Case Information

HALEY MAHR, by her mother and natural guardian, JENNIFER MAHR
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):

Claimant’s attorney:
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Adam Kaufman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 20, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 [2000] and Gehen v Consolidated Rail Corp., 289 AD2d 1026 [2001]). 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 defendant.

Accordingly, the motion is denied.

September 20, 2006
New York, New York

Judge of the Court of Claims