Claimant's motion to compel answers to notices of deposition on written questions is denied.
|Claimant short name:||VIDAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JOSEPH VIDAL, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 2, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, has filed this claim seeking monetary compensation for lost personal property. He moves to compel defendant to provide answers under oath by correction officers who are defendant's employees to Notices of Deposition on Written Questions. Defendant opposes the motion on the grounds that the motion is defective because it is not accompanied by a copy of the Notices and that the motion is premature because no such Notices were served upon the Office of the Attorney General.
Defense counsel asserts that the motion papers that were filed with the Clerk of the Court of Claims, a copy of which was received by counsel's office, do not contain the Notices (see Gavin Affirmation, ¶ 2). However, the copy of the motion papers that was forwarded to the Court from the Clerk's office does, in fact, contain a copy of the Notices (see Vidal Affidavit, Exhibit 2). Claimant's affidavit - which is among the papers submitted by defense counsel - references the Notices as one of three exhibits (see Gavin Affirmation, Exhibit A [Vidal Affidavit], ¶ 5; see also Exhibit Cover). While it is unknown why the copy of the motion that is submitted with defendant's papers purportedly lacks a copy of the Notices, the Court is loathe to find that claimant's motion should be denied as defective on this ground, especially where, as here, counsel's affirmation does not state that the copy of the motion that was served on her office (as distinct from the motion that was filed) was lacking a copy of the Notices.(1)
Nor is the Court persuaded that claimant's motion should be denied as premature because the Attorney General's office has not been served with the Notices. Each of the Notices is subscribed with indicia that they were sent to defense counsel (see Vidal Affidavit, Exhibit 3), and, in addition, claimant avers that he sent two subsequent "good faith" letters to defense counsel seeking compliance with the his requests for answers to written questions (see id., ¶ 6; Exhibit 3), and the Court received copies of those letters contemporaneously to claimant's service of them upon defense counsel. Thus, notwithstanding defendant's mere statement that "[a] search of the computer database for the Attorney General's Office shows that we did not receive any Notices of Deposition of Written Questions in this claim" (Broughton Affidavit, ¶ 3), defendant should have been aware of the pendency of the Notices, and the Court is unpersuaded that claimant's motion should be dismissed as premature.
Nevertheless, and despite defendant's failure to argue this point, claimant's motion will be denied because he has not demonstrated prima facie that he is entitled to the relief he seeks. Depositions taken on written questions (in lieu of in-person examination) is authorized by CPLR 3108, which provides that a "deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state." Here, claimant has neither asserted nor demonstrated that he and the proposed deponents have stipulated to taking the depositions on written questions or that they are out of the state.
Accordingly, it is
ORDERED, that claimant's motion number M-92722 is DENIED.
November 2, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Verified Claim Number 125974, filed April 15, 2015;
(2) Verified Answer, filed May 12, 2015;
(3) Notice of Motion, dated August 13, 2018 and filed August 16, 2018;
(4) Affidavit of Joseph Vidal in Support of Motion to Compel Answers to Deposition on
Written Questions, sworn to August 13, 2018, with Exhibits 1-3;
(5) Correspondence of Elizabeth Gavin, AAG, dated August 31, 2018;
(6) Affirmation of Elizabeth Gavin, AAG in Opposition to Claimant's Motion to Compel, dated
September 7, 2018, with Exhibits A and B (including the Affidavit of Francine Broughton,
sworn to September 7, 2018);
(7) Reply Affidavit of Joseph Vidal, sworn to September 14, 2018.
1. It bears noting that defense counsel requested a one-month adjournment of the return date of the motion from September 5, 2018 because the Office of the Attorney General "just received notification of the return date of the motion and are waiting for information from our client" (Gavin Correspondence, Aug. 31, 2018). Thus, it begs the question as to what information was being sought from the client to answer a motion to compel defendant to answer deposition Notices it asserts it never received.