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: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 1, 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 and for allegedly improper deduction of funds from his inmate trust account. He moves to compel defendant to furnish answers under oath by correction officer employees of defendant to Notices of Deposition on Written Questions. Claimant's submission in support of his motion demonstrates that he served the Notices upon defendant, that no responses have been received, and that claimant has written to defendant on two occasions seeking responses to the Notices. Despite having requested and having been granted an adjournment of the return date of the motion from September 5, 2018 to October 3, 2018 because "[we] just received notification of the return date of the motion and are waiting for information from our client" (Ryan Correspondence, Aug. 31, 2018), defendant has not submitted opposition to claimant's motion.
Notwithstanding that defendant did not respond to the motion, claimant's motion will be denied because he has not demonstrated prima facie that he is entitled to the relief he seeks. CPLR 3108 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 not demonstrated that he and the deponents have stipulated to taking the deposition by written questions, nor has he demonstrated that the deponents are out of state.
Accordingly, it is
ORDERED, that claimant's motion number M-92721 is DENIED.
November 1, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Verified Claim Number 128005, filed May 27, 2016;
(2) Verified Answer, filed June 30, 2016;
(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 J. Gardner Ryan Gavin, AAG, dated August 31, 2018;
(6) Correspondence of Nancy Schulman, Principal Law Clerk, dated August 31, 2018.