New York State Court of Claims

New York State Court of Claims

SIMMONDS v. THE STATE OF NEW YORK, #2009-033-337, Claim No. 115404, Motion No. M-76031


Synopsis



Case Information

UID:
2009-033-337
Claimant(s):
JOHN T. SIMMONDS, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF FORREST DEE BAKER, III, DECEASED, AND JOHN T. SIMMONDS, INDIVIDUALLY AND ON BEHALF OF THE NEXT OF KIN OF FORREST DEE BAKER, III, DECEASED
Claimant short name:
SIMMONDS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115404
Motion number(s):
M-76031
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Widlitz & Stern, P.C.By: Stephen I. Widlitz, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Marcie K. Glasser, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 26, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for damages for wrongful death and conscious pain and suffering by John T. Simmonds, Individually and as Executor of the Estate of Forrest Dee Baker, III, deceased, and John T. Simmonds, individually and on Behalf of the Next of Kin of Forrest Dee Baker, III, deceased, (hereinafter “claimant”). Claimant alleges medical malpractice by defendant at Stony Brook Hospital, Stony Brook, New York, between June 22, 2006 and July 2, 2006.


On November 20, 2008, a preliminary conference was held with counsel for the parties. Among other things, claimant asked to be allowed to videotape any depositions noticed by claimant. This Court ordered claimant may videotape such depositions, but claimant must provide a copy of the videotape to defendant, at claimant’s expense. This order was over claimant’s objection.

Claimant moves this Court to vacate this portion of its November 20, 2008 order[1]. Claimant argues that the Uniform Rules for the Court of Claims (22 NYCRR 206.11) shift the cost of any copy of a videotaped deposition to the party requesting it. Thus, it is claimant’s position that defendant should pay for any copy of a videotape that it wants. Claimant insists this Court abused its discretion in imposing the financial burden of furnishing defendant with a videotape of a deposition.[2]

Defendant, in opposition, relies on Kamp v Miller, 175 Misc 2d 516. In Kamp, the Appellate

Term, Second Department stated
CPLR 3116 (d) provides that "[u]nless the court orders otherwise, the party taking the deposition shall bear the expense thereof." In interpreting CPLR 3116 (d), it has been held that where a stenographer is present at a deposition to record the testimony, the party taking the deposition shall bear "the expense of having the original transcript reproduced and copies made available to opposing counsel" (Brown v University of Rochester Strong Mem. Hosp., 77 Misc 2d 221, 223, affd 46 AD2d 1016; see also, Catalano v Long Is. Jewish Hosp., 93 Misc 2d 695; 6 Weinstein-Korn-Miller, NY Civ Prac P 3116.12; 7A Carmody-Wait 2d, NY Prac § 42:354).
at 518. The Appellate Term, Second Department further stated

where the deposition was recorded on videotape pursuant to CPLR 3113 (see also, 22 NYCRR 208.12, 202.15), the question presented is whether the plaintiff, the party taking the deposition, must likewise furnish, at his own expense, a copy of the videotape recording to the opposing party. In our opinion, 22 NYCRR 202.15 (k) contains language substantially similar to CPLR 3116 (d) and provides that "[t]he cost of videotaping ... shall be borne by the party who served the notice for the videotaped ... recording of the deposition". We find no basis in the Uniform Rules for Trial Courts (22 NYCRR 202.15) for treating videotapes any differently than the original transcript of a stenographic recording. Thus, we hold that the party who served the notice for the videotaped recording of the deposition must furnish the opposing party with a free copy of the videotape. To the extent that the case of Roche v Udell (155 Misc 2d 329) appears to arrive at a contrary interpretation as to who shall bear the cost of copying the videotape of the deposition, we decline to follow such case inasmuch as we interpret 22 NYCRR 202.15 (e) to mean that only "additional" copies of the videotape must be purchased by the opposing party but that the initial copy must be provided to such party free of charge.

Kamp
at 518.


Claimant, insists the Kamp decision is incorrect and urges this Court to vacate its previous order.

This Court finds Kamp to be well reasoned and is in agreement with it. 22 NYCRR 206.11(e) is similar in language to 22 NYCRR 202.15(e), which was discussed in Kamp. In addition, 22 NYCRR 206.11(k) states that the cost of “videotaping or audio recording shall be borne by the party who served the notice for the videotaped or audio recording of the deposition.” As previously noted, it has been held the party taking a deposition must bear the expense of the deposition and providing a copy to opposing counsel.

Based upon the foregoing, claimant’s motion is denied.



March 26, 2009
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on claimant’s motion: Notice of Motion dated December 16, 2008 and filed December 22, 2008; Affirmation of Stephen I. Widlitz, Esq. with annexed Exhibits 1-4 dated December 16, 2008 and filed December 22, 2008; Affirmation in Opposition of Marcie K. Glasser, Esq. dated December 23, 2008 and filed December 24, 2008; Reply Affirmation of Stephen I. Widlitz, Esq. dated January 27, 2009 and filed January 27, 2009; Further Affirmation in Opposition of Marcie K. Glasser, Esq. dated January 13, 2009 and filed January 14, 2009.
[2].The Court notes that claimant has a companion action brought in the Supreme Court. Claimant revealed the Supreme Court also ordered claimant to provide a copy of any videotaped depositions to those defendants. Claimant indicated the judge in the Supreme Court was wrong for doing this.