New York State Court of Claims

New York State Court of Claims

KOEHL v. THE STATE OF NEW YORK, #2008-041-013, Claim No. 114946, Motion No. M-74792


Synopsis


Claimant’s application for an order compelling the deposition testimony of defendant’s employees is denied because claimant failed to first seek to obtain the depositions on notice or by stipulation as set forth in CPLR 3102.

Case Information

UID:
2008-041-013
Claimant(s):
EDWARD KOEHL
Claimant short name:
KOEHL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114946
Motion number(s):
M-74792
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
EDWARD KOEHLPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 28, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant, an inmate at Clinton Correctional Facility (Clinton), alleges in his claim that defendant has denied him access to Jewish religious services, has refused to process facility grievances and refused to provide claimant with adequate medical and dental care. The claim was served on the Attorney General on March 3, 2008 and filed with the Clerk of the Court of Claims on March 7, 2008. Defendant’s answer was served on April 3, 2008 and filed on April 9, 2008.

Claimant’s motion, served on April 7, 2008 and filed on April 10, 2008, requests an order permitting him to take the depositions of various Clinton employees.

Claimant has not served on the defendant’s attorney a notice to take the requested depositions as required by CPLR 3107 nor has any exchange of demands of bills of particulars or document discovery demands been completed.

The motion to compel depositions is denied. Pursuant to CPLR 3102 (b):
“Unless otherwise provided by the civil practice law and rules or by the court, disclosure shall be obtained by stipulation or on notice without leave of the court.”
Section 3102 further provides, at subdivision (f), that in:
“[A]n action in which the state is properly a party, whether as plaintiff, defendant or otherwise, disclosure by the state shall be available as if the state were a private person.”
Contrary to claimant’s allegation in his reply to defendant’s opposition papers, there is no legal requirement that an incarcerated claimant obtain a court order in order to depose a party’s employee who is a non-inmate (see CPLR 3106).

Finally, in Lloyd v Catholic Charities of the Diocese of Albany (23 AD3d 783, 784 [3d Dept 2005]), the appellate court, after noting that the proposed deponent was “not incarcerated,” found no reason to disturb the lower court’s “decision to deny [claimant’s] motion [to order a deposition] for his failure to serve a notice to take [defendant’s] deposition (see CPLR 3107) and engage in a good faith effort to schedule it before resorting to motion practice.”

The claimant’s motion is denied.


May 28, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s Notice of Motion, filed April 10, 2008;
  2. Claimant’s Affidavit sworn to April 7, 2008, together with annexed exhibit;
  3. Affidavit of Michael C. Rizzo, sworn to April 16, 2008;
  4. Reply Affirmation of claimant, dated April 18, 2008.