New York State Court of Claims

New York State Court of Claims

THOMPSON v. THE STATE OF NEW YORK, #2008-032-102, Claim No. 108083, Motion No. M-74284


Synopsis



Case Information

UID:
2008-032-102
Claimant(s):
ROBERT THOMPSON
Claimant short name:
THOMPSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108083
Motion number(s):
M-74284
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Craig L. Davidowitz, P.C.By: Craig L. Davidowitz, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael W. Friedman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 20, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves this Court for an order pursuant to CPLR 3106 (c) and CPLR 3108 directing that claimant's deposition be taken on written questions or, alternatively, via telephone or video conference. Defendant opposes this relief.


This action arises from claimant's alleged slip and fall in August 2001 in the mess hall of Washington Correctional Facility. At the time of the alleged incident, claimant was incarcerated at that facility. Claimant is presently incarcerated at a Federal penitentiary in Pennsylvania.

CPLR 3106 (c) provides that the deposition of a prisoner may only be taken by leave of court. Further, it is well-settled that the trial court is vested with broad discretion in supervising pre-trial discovery (CPLR 3103[a]; see Jessmer v Martin, 46 AD3d 1059, 1060 [3d Dept 2007]). As a general rule, a non-resident plaintiff who has invoked the jurisdiction of New York State by bringing suit in its courts must stand ready to be deposed in New York unless it is shown that undue hardship would result (Farrakhan v N.Y.P. Holdings Inc., 226 AD2d 133, 135-136 [1st Dept 1996], lv denied 91 NY2d 803 [1997]). Here, although claimant was a resident at the time he commenced this action, he is no longer a resident by virtue of his incarceration in Pennsylvania. Thus, claimant is presently unable to produce himself in New York for a deposition. As such, the Court directs that in the event defendant requests a deposition of claimant prior to his release from incarceration, claimant's deposition shall be conducted through either written questions or via videotape or telephone, and shall be conducted in accordance with all applicable rules governing such devices. The choice is at defendant's option, and all costs associated with the deposition shall be borne by claimant (see CPLR 3103[a]; see also Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3113:8, 2008 Pocket Part, at 16-17). To the extent that the foreign jurisdiction requires leave of court to depose a prisoner at its facility (see, e.g., CPLR 3106 [c]), the parties shall cooperate in scheduling the deposition and obtaining such approval.

Accordingly, claimant's motion is granted.



March 20, 2008
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed December 4, 2007;

2. Affirmation of Craig L. Davidowitz dated December 3, 2007; Exhibits A-B annexed;

3. Affirmation of Michael W. Friedman filed December 20, 2007;

4. Reply Affirmation filed December 28, 2007.