|Claimant short name:||PIERRE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Paul F. Dwyer, Esq.|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Belinda A. Wagner, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||July 6, 2010|
|See also (multicaptioned case)|
For the reasons set forth below, claimant's motion to compel the depositions of Governor David A. Paterson and Senator Malcolm A. Smith is denied.
The underlying claim alleges that on or about December 10, 2007, claimant was wrongfully terminated from his employment in retaliation for having reported that one of defendant's employees forged his name, without his permission or knowledge, in order to obtain a copy of his transcript from the State University of New York at Buffalo (SUNY Buffalo). On or about August 24, 2009, subsequent to noticing the depositions of Indira Noel, Zairita Penaherrera, and Mortimer Lawrence, but prior to completing the same, claimant served notices to take the depositions of Governor David A. Paterson, who at the time of the subject occurrence was the Lieutenant Governor, and Malcolm A. Smith, who is currently President Pro Tempore of the Senate, and who at the time of the subject occurrence was the Minority Leader of the New York State Senate. By letter dated September 9, 2009, defendant objected to the depositions of Governor Paterson and Senator Smith. Thereafter, claimant filed the subject motion.
In support of his motion, claimant argues that during the depositions of Ms. Noel, Ms. Penaherrera and Mr. Lawrence, it became clear to him that Governor Paterson and Senator Smith had personal involvement with the facts and circumstances relevant to the instant claim and that they are, therefore, indispensable witnesses. He argues that Ms. Noel attempted to use her influence with a variety of people, including Governor Paterson and Senator Smith, to have claimant terminated from his employment. He also argues that the facts testified to by claimant and Ms. Penaherrera were contradicted by testimony from Ms. Noel and Mr. Lawrence, and that the conversations that the parties had with Governor Paterson and Senator Smith would be essential evidence in this claim.
In opposition to claimant's motion, defendant argues that the State identified and produced three witnesses who had extensive information about the relevant facts and circumstances giving rise to the allegations. Defendant further argues that claimant has failed to demonstrate that the persons sought for the depositions possess information which is material and necessary for the prosecution of this claim, and that claimant has failed to make the requisite showing that is necessary to depose high-ranking government officials.
In support of their respective positions, the parties have submitted portions of the deposition transcripts of claimant, Indira Noel, Zairita Penaherrera and Mortimer Lawrence, which the Court has reviewed and considered.
CPLR § 3101 provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of burden of proof (CPLR § 3103[a]). The phrase "material and necessary" is to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403 ).
The party seeking discovery must first satisfy the threshold requirement that the disclosure sought is "material and necessary" (see CPLR § 3101 [a]). This standard applies regardless of whether the request is directed to a party (see CPLR § 3101 [a]) or to a nonparty (see CPLR § 3101[a]). However, even where this threshold has been met, the trial court has the authority to impose, in its discretion, appropriate restrictions on demands which are "unduly burdensome" (see Capoccia v Spiro, 88 AD2d 1100 [3d Dept 1982]) and to prevent abuse by issuing a protective order where the discovery request may cause "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR § 3103 [a]).
Claimants do not have an unfettered discretion as to whom they may depose (see D'Ulisse v Town of Oyster Bay, 81 AD2d 825 [2d Dept 1981]). A State can determine which of its officers with knowledge of facts will appear for a pretrial examination (Corso v State of New York, 23 Misc 3d 1132 (A), Nadel, J. [Ct Cl 2009]). It is only when it becomes apparent that the proffered witness is inadequate to produce testimonial and documentary evidence material and necessary to the prosecution of the action, that claimants may petition the court for the production of additional witnesses (see D'Ulisse v Town of Oyster Bay, 81 AD2d 825 [2d Dept 1981]; see also Barone v Great Atlantic & Pacific Tea Co., Inc., 260 AD2d 417 [2d Dept 1999]).
The public interest is best served by preventing the harassment of officials and the disruption of governmental operations (see Marisol A. v Giuliani, No. 95 CIV 10533, 1998 WL 132810 [SDNY 1998]). Accordingly, a litigant seeking to depose a high ranking government official must show that: (1) the deposition is necessary to obtain relevant information not available from any other source; and (2) the deposition would not hinder or interfere with the official's ability to perform his or her governmental duties (Adler v Pataki, No. 96-CV-1950, 2001 WL 1708801 [NDNY 2001]; New York v Oneida Indian Nation of New York, 95-CV-0554, 2001 WL 1708804 [NDNY 2001]; Marisol A. v Giuliani, No. 95 CIV 10533, 1998 WL 132810 [SDNY 1998]). Factors that must be considered are the availability of the information through alternative sources and the official having unique personal knowledge that cannot be obtained elsewhere or through others (New York v Oneida Indian Nation of New York , 95-CV-0554, 2001 WL 1708804 [NDNY 2001]).
In the present case, there is no question that the Governor and the President Pro Tempore of the Senate are high ranking government officials for whom the Court should not lightly impose the burden of providing a deposition. Accordingly, claimant bears the burden of showing not just that their depositions would yield evidence that is material and necessary, but that they have unique personal knowledge that cannot be obtained elsewhere or through others. This Court finds that claimant has failed to meet this burden.
At the outset, it should be noted that defendant, contrary to claimant's argument, has submitted documentary evidence reflecting that it appropriately objected to the deposition notices served upon Governor Paterson and Senator Smith. Claimant has not responded or submitted any documentation challenging defendant's position on the same.
It must also be noted that claimant noticed the depositions of Governor Paterson and Senator Smith prior to the testimony of the State's three witnesses, specifically, Indira Noel, Zairita Penaherrera, and Mortimer Lawrence. Accordingly, it cannot be said that these high ranking government officials were noticed because the testimonies of the witnesses who were produced were inadequate. To the contrary, claimant has acknowledged, in the Affidavit of Paul F. Dwyer, Esq., sworn to February 10, 2010, that defendant's three witnesses had extensive personal knowledge of the facts and circumstances of the relationship between claimant and Indira Noel, and the involvement of Mortimer Lawrence (Indira Noel's supervisor), Zairita Penaherrera (the human resource director), and Indira Noel, in claimant's reporting of Ms. Noel's illegal activity and claimant's subsequent termination.
The testimony offered by the State's witnesses shows that they were each involved in the hiring of claimant, and to the extent of their respective positions and corresponding responsibilities, they were each familiar with claimant's work, the strained working relationship between claimant and Ms. Noel, including confrontations between the two, and the facts surrounding Ms. Noel's ordering of claimant's transcript and Mr. Lawrence's decision to terminate claimant and suspend Ms. Noel.
The only testimony offered which remotely links Governor Paterson to any involvement in the determination to terminate claimant is claimant's own testimony which consists of his own speculation as well as statements he alleges to have heard from others. For example, claimant insinuates that Governor Paterson shared an intimate relationship with Indira Noel and that he was terminated after accusing Ms. Noel of committing forgery because of said relationship. However, Ms. Noel testified that she did not share any details of her personal life with claimant and further that she never had a conversation with Governor Paterson about claimant being terminated or about her signing claimant's name in order to obtain the transcript. Further, Mortimer Lawrence testified that the decision to terminate claimant was his, that it was made prior to hearing about Ms. Noel's forgery, and was based upon a number of factors independent of the reporting of said forgery. Additionally, Mr. Lawrence testified that he never spoke with Governor Paterson about claimant.
Indira Noel testified that she never had any conversations with Governor Paterson about claimant, including that claimant made her uncomfortable or that she had forged claimant's name to obtain his transcript. In addition, she testified that she never contacted Governor Paterson about the meeting where claimant accused her of forging his name, or about claimant being terminated.
The only testimony elicited regarding an actual conversation with Governor Paterson was that between Governor Paterson and Zairita Penaherrera the day after claimant reported the forgery. Claimant was not present for any part of said conversation and does not have first hand knowledge of the same. However, Zairita Penaherrera, who does have firsthand knowledge of the conversation, testified that she relayed to Governor Paterson what had occurred, specifically, that claimant was alleging that Indira Noel had forged his name in order to obtain a copy of his transcript. She further testified that Governor Paterson inquired only as to what was happening at the moment and that was the only time that she called Governor Paterson about claimant and the transcript situation. She further testified that Governor Paterson never told her that he was going to take action against claimant if he sought legal action against Ms. Noel.
Claimant has offered no first hand knowledge of Governor Paterson's involvement in the facts leading up to the instant claim. Additionally, none of the testimony elicited from the State's witnesses to date gives this Court any reason to believe that Governor Paterson played a role in the termination of claimant or that any information he would testify to would be relevant, essential, and unable to be obtained by another source.
Likewise, the only evidence submitted with regard to Senator Smith was a discussion between Mortimer Lawrence and Senator Smith, as testified to by Mr. Lawrence. In said conversation, which occurred prior to the meeting about the transcript, Mr. Lawrence shared with Senator Smith the fact that he intended to terminate claimant.
Based upon the foregoing, this Court finds that the depositions of Governor Paterson and Senator Smith are unlikely to lead to the discovery of admissible evidence. Claimant's motion to compel is therefore denied.
July 6, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion and Affidavit of Paul F. Dwyer, Esq., sworn to February 10, 2010, with Exhibits and Memorandum of Law;
2. Affirmation in Opposition of Belinda A. Wagner, AAG, dated April 7, 2010, with Exhibits and Memorandum of Law.
Papers Filed: Claim, filed March 7, 2008; Verified Answer, filed April 16, 2008.