THE STATE OF NEW YORK by H125Ocy

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									SCOTTLAND v. THE STATE OF NEW YORK, #2005-028-510, Claim No. 105828,
Motion No. M-69311

                                              Synopsis



                                       Case Information

UID:                                 2005-028-510

Claimant(s):                         DENISE SCOTTLAND, individually and as ADMINISTRATRIX
                                                                                          1
                                     OF THE ESTATE OF BEETHAVEAN SCOTTLAND, Deceased
Claimant short name:                 SCOTTLAND

Footnote (claimant name) :

Defendant(s):                        THE STATE OF NEW YORK

Footnote (defendant name) :          The caption of this action is amended sua sponte to reflect the
                                     State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):                     105828

Motion number(s):                    M-69311

Cross-motion number(s):

Judge:                               RICHARD E. SISE

Claimant’s attorney:                 THE COCHRAN FIRM
                                     BY:     Kim Mazzatto, Esq.
Defendant’s attorney:                HON. ELIOT SPITZER, ATTORNEY GENERAL
                                     BY:     Gail Pierce-Siponen, Esq.
                                     Assistant Attorney General
Third-party defendant’s attorney:

Signature date:                      January 31, 2005

City:                                Albany

Comments:

Official citation:

Appellate results:


1
 The caption of this action is amended sua sponte to reflect the State of New York as the only
properly named defendant.
See also (multicaptioned case)



                                             Decision

In reaching its decision on the instant motion, the Court has read and considered the following
papers:

       (1) Order to Show Cause for permission to take an oral examination of non-resident,
       non-party witnesses Larry Hazzard, Tom Kaczmarek, George Jones and Fred Ucci, and
       for subpoenas ad testificandum for said parties dated November 3, 2004 and filed on
       November 1, 2004;

       (2) Supporting Affirmation of Kim Mazzatto, Esq., dated September 30, 2004 received
       (Mazzatto Affirmation);

        (3) Affirmation in Response of Gail Pierce-Siponen, Assistant Attorney General together
        with Exhibits A-D, dated November 8, 2004 and filed on November 9, 2004
        (Pierce-Siponen Affirmation).
        The present Claim is based upon the death of Beethavean Scottland, while engaged in a
boxing match aboard the USS Intrepid.
        The attorney for the Claimant argues that the oral depositions are material and necessary
to the proper prosecution of the Claim.
        The State’s opposition to the application is based upon the failure of Claimant’s attorney
to seek these depositions at an earlier date and the lack of necessity and materiality of the
proposed depositions.
        Mindful of the liberality of the Courts in permitting discovery (Allen v Crowell-Collier
Publ. Co., 21 NY2d 403), the Court grants the Claimant’s application notwithstanding its
tardiness.
        The test of “material and necessary” is in actuality one of usefulness and reason; thereby
striking a balance between the burden of discovery and the merits of the Claim (see Belco
Petroleum Corp. v AIG Oil Rig, 179 AD2d 516). Here the Court finds that the requests are
reasonable and may provide information as to the condition of the Claimant’s Decedent at
various stages of the match.
        Claimant to submit an Order on notice.



                                                                                  January 31, 2005
                                                                                  Albany, New York

                                                                           HON. RICHARD E. SISE
                                                                        Judge of the Court of Claims

								
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