Opinion
# 2018-038-599 Claim No. 129992 Motion No. M-93098
01-02-2019
P.T. v. STATE OF NEW YORK
WARREN S. LANDAU, ESQ. LETITIA JAMES, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General
Synopsis
Claimant's motion to compel defendant to provide retired employee's home address for service of subpoena to appear for EBT granted. Employee was alleged primary tortfeasor and his testimony is material and necessary to prosecution of claim. Defendant could not compel former employee to attend, and efforts to obtain his voluntary cooperation were unsuccessful.
Case information
| UID: | 2018-038-599 |
| Claimant(s): | |
| Claimant short name: | P.T. |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129992 |
| Motion number(s): | M-93098 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | WARREN S. LANDAU, ESQ. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 2, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Inasmuch as the claim alleges that claimant was a victim of sexual assault, the caption has been amended in accordance with Civil Rights Law § 50-b (1).
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging inter alia that he was assaulted by Correction Officer (CO) M. Waldron on July 30, 2016 at Clinton Correctional Facility. Claimant makes this motion seeking an order compelling defendant State of New York to provide claimant's counsel with the home address and telephone number of CO Waldron, who is now retired, so that he may be served with a subpoena to appear for a deposition (see CPLR 3106 [b]). Defendant opposes the motion on the ground that the CO Waldron's appearance for deposition is less material and necessary than his appearance at trial, and that the former CO Waldron's telephone number is not necessary for service of a subpoena. Defendant requests that if the motion for the CO's home address is granted, such information should be provided to claimant's counsel only on condition of confidentiality. In reply to defendant's opposition to his motion, claimant argues that the deposition of CO Waldron is material and relevant to the prosecution of the claim and that the CPLR does not draw a distinction between examination before trial and appearance at trial. Claimant's reply abandons his request for CO Waldron's telephone number, and counsel consents to maintain the confidentiality of his home address.
In pre-trial discovery in a civil action, "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action . . . by . . . [an] employee of a party" (CPLR 3101 [a] [1]) or "any other person, upon notice stating the circumstances or reasons such disclosure is sought or required" (CPLR 3101 [a] [4]). As CO Waldron's governmental employer, defendant requires a court order to disclose his home address (see Labor Law § 203-d [1] [d]; Public Officers Law § 96 [1] [k]), a requirement that defendant continues to apply to its former employee. Defense counsel advises that efforts to obtain the voluntary cooperation of former CO Waldron in discovery of this claim have been unsuccessful, and that defendant cannot mandate his cooperation as he is no longer employed by defendant (see Monjeau Affirmation, ¶ 6). Thus, a subpoena appears to be the only way in which claimant can conduct an examination before trial of CO Waldron, who is alleged to have been the direct and primary tortfeasor against claimant. Claimant's request for CO Waldron's address is made through counsel who agrees to keep that information confidential, and it does not appear that claimant has any motive other than to depose CO Waldron in seeking his address for service of a subpoena. Defendant acknowledges that CO Waldron possesses information that is material and relevant to the claim, but counsel asserts that CO Waldron's privacy interest in his personal identifying information is superior to claimant's right to depose a witness. However, defendant does not expressly articulate the parameters of that privacy interest nor does it cite any authority for the distinction it draws between pre-trial discovery and trial testimony.
The Court finds that the deposition of CO Waldron is material and necessary to the prosecution of the claim, and thus claimant should be permitted to depose him. Therefore, the Court will order defendant to provide claimant's counsel with CO Waldron's last-known home address, subject to a confidentiality agreement that is acceptable to, and executed by, both parties. Accordingly, it is
ORDERED, that claimant's motion is GRANTED IN PART, and that defendant shall, not sooner than ten (10) days and not more than fourteen (14) days after the date of filing of this Decision and Order, provide claimant's counsel with the requested home address, subject to a mutually agreeable confidentiality agreement, and it is further
ORDERED, that defendant shall personally serve a copy of this Decision and Order upon CO Waldron not later than three (3) days after the date of filing of this Decision and Order.
January 2, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 129992, filed July 19, 2017; (2) Notice of Motion, dated November 9, 2018; (3) Affirmation of Warren S. Landau, Esq., in Support of Motion, dated November 9, 2018, with Exhibits 1-4; (4) Affirmation in Opposition of Thomas R. Monjeau, AAG, dated November 19, 2018; (5) Affirmation of Warren S. Landau, Esq., in Reply and in Further Support of Motion, dated November 20, 2018.