New York State Court of Claims

New York State Court of Claims

NORWOOD v. THE STATE OF NEW YORK, #2007-042-510, Claim No. 108909, Motion No. M-73042


Synopsis


This motion is brought by the defendant pursuant to CPLR Rule 3124 to compel claimant to attend an oral deposition and seeks sanctions for claimant’s failure to appear at a previously scheduled deposition. Defendant’s request for sanctions is denied. Defendant’s motion to compel is granted.

Case Information

UID:
2007-042-510
Claimant(s):
LEONARD NORWOOD
Claimant short name:
NORWOOD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108909
Motion number(s):
M-73042
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
LEONARD NORWOOD, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 19, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This motion is brought by the defendant pursuant to CPLR Rule 3124 to compel claimant to attend and appear at an oral deposition and also seeks sanctions for claimant’s failure to appear at a previously scheduled deposition. The following papers were considered by the Court:
1. Notice of Motion, filed March 2, 2007
2. Affirmation of Joel L. Marmelstein, Esq., dated March 1, 2007
3. Exhibits A - E, annexed to the moving papers

_______________________________________________


This matter comes before the court on a motion by defendant, brought pursuant to CPLR Rule 3124 to compel claimant to attend and appear at an oral deposition (hereinafter referred to simply as “deposition”). The defendant also seeks sanctions of $150.00 to be imposed against claimant for the failure to appear at a previously scheduled deposition. Claimant has submitted no opposition to this motion.

Defense counsel alleges that claimant was served, by ordinary mailing, with a “Notice To Take Deposition Upon Oral Examination” on October 10, 2006. The deposition was noticed to be conducted on January 30, 2007. Following service, and prior to the scheduled deposition date, defense counsel made numerous calls to telephone numbers provided by claimant, in an attempt to confirm claimant’s appearance. Counsel also states that a message was left for claimant at a phone number identified as the number of claimant’s mother. Nevertheless, counsel received no responses to the Notice or to these calls.

Claimant failed to appear at the appointed time and place. Defense counsel incurred a $150 cancellation fee, issued by the stenographer retained to take the deposition.

It was not until February 1, 2007 that claimant phoned defense counsel. Claimant advised defense counsel that he could not afford to attend the deposition. Counsel alleges that claimant acknowledged receiving the deposition notice in early October and offered no excuse for failing to contact the Attorney General prior to the deposition date.

The defendant seeks an order of this court compelling claimant to appear at a deposition at the Attorney General’s Utica offices on May 17, 2007 together with sanctions in the amount of $150 for the cancellation fee referred to above.

Defendant’s request for sanctions is denied at this time. While the behavior of the pro se claimant in failing to contact counsel prior to the scheduled deposition was thoughtless, there is no indication that claimant had an understanding of the out-of-pocket cost to the defendant for a failure to appear.

However, the motion to compel is granted. Though there can be circumstances in which the deposition may be held in a location which will cause less hardship to the claimant, the general rule is that a party’s deposition should take place in the county in which the action is pending (Simmons v State of New York, UID No. 2000-007-076, Claim No. 94484, Motion Nos. M-62393, CM-62625, Bell, J.). In the absence of opposition by claimant to this motion, the deposition shall be conducted in Oneida County, the county in which this action is pending.

Accordingly, it is hereby

ORDERED that defendant’s motion to compel claimant to attend and appear at an oral deposition is granted; and it is further

ORDERED that claimant shall submit to a deposition at a time and place, within Oneida County, to be set by the Attorney General, and that such deposition shall occur within 45 days of the filed date of this decision and order; and it is further

ORDERED that in the event claimant fails to appear and attend as directed above, claimant shall be precluded from testifying at the trial of this action; and it is further

ORDERED that the defendant’s request for sanctions is denied.



April 19, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims