New York State Court of Claims

New York State Court of Claims

THURSTON v. STATE OF NEW YORK, #2007-018-578, Claim No. 109958, Motion No. M-73231


Claimant’s motion to compel depositions is granted.

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):

Claimant’s attorney:
ALEXANDER & CATALANO, LLCBy: Peter J. Addonizio, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Michael R. O’Neill, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 10, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings this motion for an Order pursuant to CPLR 3126 compelling the

defendant to produce specified witnesses for oral deposition. Claimant also seeks an extension of the time for the completion of discovery and the filing a note of issue as set forth in the Amended Preliminary Conference Order dated January 16, 2007. No response to the motion was received from defendant.

This claim was filed on October 14, 2004, seeking damages for injuries she sustained when she slipped and fell on the sidewalk on the grounds of University Hospital on June 18, 2003. Claimant served a Notice of Examination Before Trial dated February 3, 2005, seeking to take the oral deposition of Sergeant McKnight, R.N. Maria Lumbrazo, and a representative from University Hospital with knowledge of the premises, such as a maintenance/grounds supervisor.

Despite the repeated efforts of claimant’s counsel, no dates for taking the requested depositions has been forthcoming. The Court previously conferenced this case with counsel on January 12, 2007, and amended the Preliminary Conference Order with which defendant has not complied. As noted above, Defendant has not provided any response to this motion, and has not asserted that the persons sought for depositions are unavailable or not subject to the State’s control. As a result, this Court is inclined to grant the requested relief.

Accordingly, the Court GRANTS claimant’s motion to the extent that defendant has 30 days, from the date a copy of this Order is served upon defendant by claimant, to produce Sergeant McKnight, R.N. Maria Lumbrazo, and a representative from University Hospital with knowledge of the premises, such as a maintenance/grounds supervisor, for oral depositions at a reasonable time and location determined by claimant’s counsel. If defendant fails to produce the persons described herein, the issues for which the testimony of the witnesses is sought shall be deemed resolved for purposes of this action in accordance with the claimant’s allegations as set forth in the claim; and it is further

ORDERED, that the Amended Preliminary Conference Order, dated January 16, 2007, is hereby modified as follows:

(1) All oral depositions sought by claimant are to be completed within 30 days of the date this Decision and Order is served by claimant upon defendant, unless the parties stipulate within those 30 days in writing to another time frame and a copy of the stipulation is provided to the Court;

(2) Any remaining discovery shall be completed by December 1, 2007;

(3) Claimant shall file a note of issue and certificate of readiness by December 15, 2007; and

(4) Except as modified herein the Preliminary Conference Stipulation and Order signed on August 10, 2006 shall remain in full force and effect.

September 10, 2007
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion..................................................................................1

Affirmation of Peter J. Addonizio, Esquire, in support, with

exhibits attached thereto.........................................................2

No response was received from the defendant.