Motion for leave to take deposition of nonparty incarcerated person granted. Nonparty's anticipated testimony is material and necessary to the prosecution and defense of this claim.
|Claimant short name:||JACOBS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||O'BRIEN & FORD, P.C.
By: Christopher Pannozzo, Esq.
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Thomas J. Reilly, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 20, 2021|
|See also (multicaptioned case)|
This claim alleges that claimant was the victim of an assault by multiple incarcerated persons at Clinton Correctional Facility (CF) in August 2017. Defendant now moves for leave of Court to take the examination before trial (EBT) of an incarcerated person, Ronnie Lapan, who is currently incarcerated at Coxsackie Correctional Facility. Claimant does not oppose the motion. Lapan was served with the motion and has not submitted any papers in response.
The claim alleges that on August 22, 2017, claimant "was attacked . . . [,] seized and unlawfully imprisoned" by incarcerated persons at Clinton CF "without cause or provocation" (see Claim No. 132358, ¶ 7]), resulting in physical and emotional injuries (see id. at ¶ 9). The claim asserts causes of action sounding in negligence, deliberate indifference, unlawful imprisonment, and violation of claimant's civil rights under the federal and state constitutions (see id. at ¶¶ 3-4, 7-8).
The CPLR provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action" by nonparties "upon notice stating the circumstances or reasons such disclosure is sought or required" (CPLR 3101 [a] ). "A party seeking disclosure from a nonparty witness, in addition to demonstrating that the disclosure sought is material and necessary, must also set forth circumstances or reasons why disclosure is sought or required from a nonparty" (Kondratick v Orthodox Church in Am., 73 AD3d 708, 708-709 [2d Dept 2010]; see Lerner v State of New York, 113 AD3d 916, 918 [3d Dept 2014] [a litigant seeking disclosure from a nonparty is "required to demonstrate something more than simply relevance and materiality"]). In seeking non-party disclosure, a litigant need only demonstrate that disclosure is "material and necessary," and the CPLR "imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure is relevant to the prosecution or defense of an action, it must be provided by the nonparty" (Matter of Kapon v Koch, 23 NY3d 32, 38 ). With respect to depositions of nonparty incarcerated persons,
"[a] subpoena . . . to compel attendance of any person confined in a penitentiary or jail, shall be issued by the court . . . on at least one day's notice to the person having custody of the . . . person confined. A subpoena to produce a prisoner so confined shall be issued by . . . a judge of the court of claims, if the matter is pending before the court of claims"
(CPLR 2302 [b]). The CPLR further provides that "[t]he deposition of a person confined under legal process may be taken only by leave of the court" (CPLR 3106 [c]).
In support of the instant motion, defendant argues that Mr. Lapan, "is believed to be a material witness to the incident that forms the basis for this lawsuit, and upon information and belief, his testimony is necessary and relevant to the defense of this action" (Reilly Affirmation, ¶ 5). Specifically, defendant asserts that "upon information and belief, Mr. Lapan was involved in an altercation with [c]laimant and that altercation serves as [the] underlying allegation for the . . . [c]laim" (id.).(1) Accordingly, defendant requests that the Court grant its motion seeking leave to conduct the EBT of Mr. Lapan, and has appended as exhibits to the motion a proposed subpoena for Mr. Lapan's deposition testimony and a proposed order directing the Department of Corrections and Community Supervision to produce Mr. Lapan for the purpose of taking his EBT (see id. at ¶¶ 6-9; see also Subpoena, dated Dec. 2, 2021; Proposed Order, undated). In response to the motion, claimant states that he "do[es] not oppose the relief requested" but "ask[s] that if the Court grants the relief, that the deadline to file the Note of Issue be modified accordingly" (Pannozzo Correspondence, dated Dec. 14, 2021). As noted above, Lapan has not responded to the motion.
Here, inasmuch as Lapan allegedly perpetrated the assault that serves as the basis of this claim, it is manifest that his pre-trial testimony is material and necessary to the prosecution or defense of this action. Moreover, through this motion defendant has provided notice to Lapan as to the circumstances or reasons for seeking his deposition. Therefore, in the absence of any opposition from Lapan, defendant's motion will be granted. However, the Court would note that neither the subpoena that the Assistant Attorney General (AAG) executed on December 2, 2021 nor the proposed order to produce states on its face the circumstances or reasons for the deposition or the date and time of the deposition. Therefore, defendant is directed to resubmit to the Court and the other parties to this motion the AAG's subpoena and the proposed order to produce with the missing information included prior to the Court's issuance of the order to produce.
Accordingly, it is
ORDERED, that defendant's motion number M-97586 is hereby GRANTED and the Court will issue an order to produce non-party Ronnie Lapan for a deposition; and it is further
ORDERED, that defendant is directed to resubmit to the Court the AAG's subpoena and the proposed order to produce with the missing information, as provided herein, prior to the issuance of the order to produce.
December 20, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 132358, filed December 5, 2018;
2. Verified Answer, filed December 19, 2018;
3. Notice of Motion, dated December 2, 2021;
4. Attorney Affirmation of Thomas J. Reilly, AAG, dated December 2, 2021;
5. Subpoena, dated December 2, 2021;
6. Proposed Order to Produce, undated;
7. Affidavit of Service of Theresa MacPhail, sworn to December 2, 2021;
8. Correspondence of Christopher M. Pannozzo, Esq., dated December 14, 2021;
9. Decision and Order, Jacobs v State of New York, UID No. 2021-038-517 (Ct Cl, DeBow, J., Mar. 18, 2021).
1. Indeed, prior motion practice revealed that Mr. Lapan is the only alleged assailant involved in the underlying incident (see Decision and Order, Jacobs v State of New York, UID No. 2021-038-517 [Ct Cl, DeBow, J., Mar. 18, 2021]).