New York State Court of Claims

New York State Court of Claims

MURCHISON v. THE STATE OF NEW YORK, #2009-032-145, Claim No. 115661, Motion No. M-76862


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:
O’Connell and Aronowitz, P.C.By: Donald W. Biggs, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 8, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks an order pursuant to CPLR 3108 and CPLR 3111 directing the issuance of an open commission to enable Claimant to take the deposition of James Page as a nonparty witness and to request the Lorain County Court of Common Pleas of the State of Ohio or another Ohio State Court deemed appropriate by the Court, to issue a subpoena to James Page to appear for and submit to his deposition at a time, date and place to be set by the Lorain County Court of Common Pleas of the State of Ohio or another Ohio State Court deemed appropriate by the Court. Defendant has submitted correspondence advising the Court that it takes no position with respect to Claimant’s motion.

The underlying claim alleges that on May 17, 2006, a member of the New York State Police and/or the Department of Environmental Conservation negligently directed Claimant to back out onto State Route 374 with his vehicle into the path of an oncoming car causing it to be struck by said oncoming car. Claimant alleges that as a result of said accident, he sustained severe injuries to his back, shoulders, lungs, ribs and brain.

In support of his application for an open commission, Claimant’s attorney indicates that he has spoken with James Page, who resides in Ohio and is the nonparty witness sought to be deposed, and understands that Mr. Page was present at the time of the accident and has knowledge relevant to the circumstances immediately preceding it. Specifically, it is his understanding that Mr. Page witnessed a New York State officer, employee, servant, agent or representative directing and guiding Claimant onto the highway prior to the accident. Claimant’s attorney alleges, upon information and belief, that Mr. Page confirmed a similar version of the events in conversations with a private investigator hired by Claimant and also with an investigator hired by Defendant’s counsel.

An oral examination of an eyewitness is a more effective method for eliciting information regarding the occurrence than written questions (see Wiseman v American Motors Sales Corp., 103 AD2d 230 [2d Dept 1984]).

Service of a subpoena outside of New York State is ineffective to compel a witness to appear at a deposition or produce documents in the State (see Wiseman v American Motors Sales Corp., 103 AD2d 230, supra). However, CPLR 3108 authorizes the taking of oral depositions outside of the State. Where a witness resides without the State, and a party would otherwise have been entitled to depose said witness pursuant to CPLR 3101 (a), the party should be permitted to proceed by an open commission (see Kelleher v Mazzaro, 175 AD2d 352 [3d Dept 1991]; Kekis v Park Slope Emergency Physician Service, P.C., 244 AD2d 463 [2d Dept 1997]; Wynkoop v County of Nassau, 139 AD2d 731 [2d Dept 1988]).

This Court concurs with Claimant that Mr. Page possesses information regarding the accident which is material and necessary to the prosecution of this action and is satisfied with the efforts made by Claimant to conduct the deposition of Mr. Page without court intervention.

Inasmuch as the disclosure sought by Claimant is evidence “material and necessary” for the prosecution of his claim (CPLR 3101[a]), and James Page presently resides outside the State of New York, Claimant’s application for an open commission authorizing the taking of Mr. Page’s deposition on oral questions in Ohio is granted.

September 8, 2009
Albany, New York
Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, dated June 22, 2009, and Affidavit in Support of Claimant’s Motion for Issuance of an Open Commission, sworn to by Donald W. Biggs, Esq., June 22, 2009, with Exhibit;

2. Letter from Michael C. Rizzo, Assistant Attorney General, dated July 9, 2009, advising that Defendant takes no position with respect to Claimant’s motion.

Papers Filed: Claim, filed August 8, 2008; Verified Answer, filed September 8, 2008.