Peters v. State

• Decision Date: 28 February 1964
• Docket Number: No. 39548,39548
• Parties: Bernard C. PETERS and Theresa Peters, Claimants, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 811

247 N.Y.S.2d 811

41 Misc.2d 980

Bernard C. PETERS and Theresa Peters, Claimants, v. The STATE of New York, Defendant.

Claim No. 39548.

Court of Claims of New York.

Feb. 28, 1964.

Stephen Vinciguerra, Troy, of counsel, for claimants.

Louis J. Lefkowitz, Atty. Gen., by Harold Coyne, Asst. Atty. Gen., Grace K. Banoff, Assoc. Atty., of counsel, for the State.

PAUL C. REUSS, Judge.

The claim herein is based upon the alleged negligence of the State of New York in releasing one Charles Hatz from Utica State Hospital. On August 27, 1959, a date subsequent to such release, the said Hatz assaulted and shot the claimant Theresa Peters. As a result thereof she sustained serious and permanent injuries. Hatz subsequently committed suicide.

Pursuant to an order of this court dated June 20, 1962, entered June 21, 1962, the claimants, on August 28, 1963, conducted an examination of the State of New York by Drs. Freund, Meyers and Defandorf all members of the staff of Utica State Hospital. According to an affidavit sworn to January 23, 1964 by Peter John Enzien, an attorney associated with the attorney for the claimants herein, and submitted in support of the instant motion the examination was taken by an inexperienced stenographer. The transcribed minutes were not received by claimants' attorney until December 5, 1963 and thereafter a copy of the transcript was forwarded to the Attorney General for review, correction and signature by the parties examined. Said signed and corrected transcripts were returned to claimants' attorney by the Attorney General on January 14, 1964.

The affidavit alleges that the testimony was in many important and essential parts garbled, incoherent and incomplete and that several important questions asked by the deponent did not appear in the transcript minutes. We do not consider such matters pertinent to this motion. The proper method of dealing with errors of the officer or person transcribing a deposition is a motion to suppress the deponent's deposition or some part thereof pursuant to CPLR Rule 3116, subdivision (e). The claimants have not seen fit to proceed under said rule and since they have not done so we will give no further consideration to any errors in the transcript of the examination before trial.

Claimants have moved for an order pursuant to CPLR § 3102(f) and Section 3123 of the CPLR directing the State of New York to admit certain facts put in issue by this claim.

The Attorney General contends that CPLR § 3123 is not applicable to a proceeding in the Court of Claims. We will proceed to consider these contentions:

(a) In stating the time for the service of a notice to admit, CPLR § 3123(a) refers to the service of an answer and the service of a summons. The Attorney General argues that inasmuch as Court of Claims practice does not require the State to answer (Rules of Court of Claims, rule 13) and a proceeding in the Court of Claims is initiated by the service and filing of a claim rather than a summons, the section was thereby not intended to apply to the Court of Claims. We regard this objection of little consequence for reasons hereinbelow stated and construe the statute to provide for the service of a notice to admit 20 days after the filing of the claim.

(b) The State further argues that the use of the words 'any other party' in a statute does not include the State of New York by implication. The State relies on the canon of construction that the sovereign is presumptively not intended to be bound by its own statute unless named therein if the statute impinges on its sovereignty. However, such presumption 'is intended only as an aid to consistent constructions of statutes of the enacting sovereign when their purpose is in doubt.' Carey v. Standard Brands, Inc., 12 A.D.2d 233, 236, 210 N.Y.S.2d 849, 851, affd. 12 N.Y.2d 855, 236 N.Y.S.2d 962, 187 N.E.2d 562. A statute does apply to the State if the State is included therein by necessary implication, Di Santo v. State, 41 Misc.2d 601, 245 N.Y.S.2d 234. Moreover, as stated below, we have concluded that CPLR Article 31 is expressly applicable to the State in an action in the Court of Claims.

(c) The State contends that Section 3102(f) limits disclosure in the Court of Claims to only those procedures which may be granted on order. This court has already disposed of this contention holding that the scope of disclosure in this court is not limited to those procedures obtainable by order but rather the use of the word 'order' in this section is only a limitation on the method employed to obtain disclosure, Di Santo v. State, supra.

(d) The Attorney General further contends that CPLR § 3123 cannot apply to the State since the admissions would be made by employees without interest in the litigation citing Cox v. State, 3 N.Y.2d 693, 698, 171 N.Y.S.2d 818, 821, 148 N.E.2d 879, 881. The pertinent section of the CPLR contemplates the admissions would be made by the Attorney General or his representative who is certainly well qualified and competent to answer a notice to admit. Moreover the requirement that disclosure be had only on order in the Court of Claims is an additional protection to the State.

Having considered the various technical objections raised by the Attorney General we now come to the real question raised by the motion under consideration and that is whether CPLR Article 31 applies in its entirety to an action in the Court of Claims and we have concluded that it does. CPLR Article 31 is entitled 'Disclosure'. Section 3102 thereof deals with the method of obtaining disclosure and subdivision (f) thereof specifically provides as follows:

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