Page v State of New York

[*1] Page v State of New York 2006 NY Slip Op 52537(U) [14 Misc 3d 1216(A)] Decided on December 20, 2006 Ct Cl Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2006
Ct Cl

Harry Page, Claimant,

against

The State of New York, Defendant.



110667



For Claimant:

Robert W. Nishman, Esq.

For Defendant:

Eliot Spitzer, Attorney General

by: Ellen S. Mendelson, AAG

Alan C. Marin, J.

Harry Page has a claim against the State of New York alleging that on August 5, 2002, he fell on the running track of the gymnasium at Arthur Kill Correctional Facility, in Richmond County, due to an accumulation of water on the track. A late claim motion pursuant to §10.6 of the Court of Claims Act had been granted by Decision and Order signed February 4, and filed February 22, 2005. However, before the deposition of Mr. Page could be taken, claimant was "deported in June 2005 and presently resides in Trinidad. Upon information and belief, he is not permitted to re-enter the United States . . ." (Affirmation of claimant's counsel, third unnumbered page).

Claimant moves here for an Order seeking to advance discovery, proffering several alternative methods: i) directing defendant to conduct its deposition of the claimant on written questions under CPLR Rule 3108; ii) requesting issuance of an open commission or letters rogatory for the defendant's taking of the deposition under Rule 3108; iii) directing defendant to question claimant via written interrogatories pursuant to CPLR §3130; or iv) finally, that no questioning of Page be conducted, but that his sworn proposed claim appended to his late claim motion and the August 20, 2002 affidavit of a purported witness, Shawn Thomas, be used in lieu thereof.

For its part, defendant opposes claimant's motion and cross-moves per CPLR 3124 to compel disclosure seeking an Order directing Mr. Page to appear in New York County for a deposition and for a medical examination by a physician designated by defendant.

Claimant cites three cases: Bator v Hungarian Commercial Bank of Pest, 275 AD 826, 90 NYS2d 35 (1st Dept 1949); Matter of Stonchius, 209 AD2d 705, 619 NYS2d 960 (2d Dept 1994); and Pagan v Magrill Brothers, Inc. 244 AD2d 183, 664 NYS2d 36 (1st Dept 1997).

In the Bator case, plaintiff, a New York resident and former Hungarian national, had sued the bank that employed him in Hungary for breach of his employment contract in Supreme Court, New York County. The First Department allowed defendant to take the testimony of two executives of the Hungarian bank in Hungary on written interrogatories, modifying the Order below for an open commission to be held in Switzerland. The First Department left open for the trial court whether, upon return of the interrogatories, that if such were inadequate, plaintiff would [*2]be allowed to move again for an open commission.

In the Stonchius matter, the Second Department upheld an Order granting leave to depose "certain witnesses in Lithuania and elsewhere upon open commissions pursuant to CPLR 3108," modifying it to add some limitation on travel expenses, but otherwise little detail is contained in the reported case. 209 AD2d at 705, 619 NYS2d at 960. Pagan, supra , is also sketchy; what we do know is that the First Department upheld the issuance of an open commission for the controller of a company.

Defendant opposes claimant's alternatives, maintaining that the deposition of a party must take place in the county where the action is pending. Hoffman v Kraus, 260 AD2d 435, 688 NYS2d 575 (2d Dept 1999). According to defendant, cases that allow open commissions and other long-range variants are used to avoid hardship, and do not apply to the circumstances here:

[A]lthough Claimant's deportation may not have been "voluntary", the underlying criminal acts leading to his various convictions were voluntary and subsequently resulted in his absence from the jurisdiction. Thus, in essence his deportation was wholly within his control. [def Affirmation, ¶ 17]

What is sought here is the use of Mr. Page's deposition (or written questions or interrogatories) as evidence in chief "at trial in lieu of Claimant's presence" (cl Affirmation, sixth unnumbered page; see also the fifth unnumbered page). Subparagraph (ii) of CPLR 3117(a)(3) permits the use of the deposition of any person by any party as direct evidence if the witness (including a party [FN1]) is more than one hundred miles away, "unless it appears that the absence of the witness was procured by the party offering the deposition." Defendant relies upon Simmons v State of New York (unreported, claim no. 94484, motion nos. M-62393 and CM-62625, UID No.2000-007-076 [FN2]), where the claimant was a former inmate deported to Guyana, in which Judge Bell stated, "Here, the court finds that claimant's current inability to return to New York to pursue his claim is not the result of an acceptable substantial hardship, but was caused by his own conduct" (def Affirmation, exh B at p. 5).

No precedent has been offered by claimant, or otherwise located, that would permit the use of a deposition, written questions or interrogatories under the circumstances obtaining in this matter.[FN3] Compare, for example, Dailey v Keith, 306 AD2d 815, 760 NYS2d 715 (4th Dept 2003), affd 1 NY3d 586, 774 NYS2d 105 (2004)[FN4] and McGuigan v Carillo, 150 Misc 2d 881, 578 NYS2d 389 (Sup Ct, Queens County 1991). Moreover, under our circumstances, there is no basis to implicate subparagraph (iii) of CPLR 3117(a)(3), which allows the use of deposition testimony if the witness is in prison, or unable to testify at trial due to age, sickness or infirmity.The representations here by his lawyer as to Mr. Page's prospects for ever returning to the United States (he is a "permanent deportee"[FN5]) are [*3]stronger than those set out in the Simmons case where Judge Bell gave Mr. Simmons six months to appear in New York State before subjecting his case to dismissal. The assiduous efforts by claimant's counsel cannot at this time save Page's case from dismissal, but nor does this Decision and Order necessarily mean that if Mr. Page lawfully presents himself in the State of New York, that the claim arising from his accident of August 5, 2002 could not, subject to the prevailing circumstances, properly be reinstated.

***

In view of the foregoing and having read and considered the parties submissions,[FN6] IT IS ORDERED that claimant's motion be denied, that defendant's cross-motion be denied as moot to the extent that it requests certain disclosure, and that the portion of the defendant's motion seeking other just and proper relief be granted and the claim of Harry Page be dismissed (claim no. 110667).

New York, New York

December 20, 2006

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1:Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3117:8, at 192 ("This [referring to a subparagraph], as does all of CPLR 3117(a)(3), applies to a party as well as nonparty witness").

Footnote 2: This and other decisions of the Court of Claims may be found on the court's website: www.nyscourtofclaims.state.ny.us.

Footnote 3: Nor has any basis been supplied for the use of Page's proposed claim and the affidavit of a potential witness in place of live testimony.

Footnote 4: In Dailey v Keith, one of the defendants having moved to Texas sought under CPLR 3117(a)(3)(ii) to use her deposition as direct evidence, but the trial court was upheld in rejecting such request, ruling that Patricia Keith's refusal to return for trial was voluntary notwithstanding her change of employment and fear of flying. Further, the Fourth Department in Dailey quoted Professor Siegel on the "law's preference for oral testimony in open court." 306 AD2d at 815, 760 NYS2d at 715 (citations omitted).

Footnote 5: Claimant's Affirmation, the fifth unnumbered page.

Footnote 6: Claimant submitted: a Notice of Motion and an Affirmation with exhibits 1 through 7; and a Reply Affirmation. Defendant submitted: a Notice of Cross-Motion with an Affirmation in Support of Cross-Motion & in Opposition to Claimant's Motion with exhibits A and B.