On February 19, 2020 a
Exhibit,Appendix
was filed
involving a dispute between
Lg 55 Doe,
and
Joseph A. Grasso,
for Torts - Child Victims Act
in the District Court of Monroe County.
Preview
FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM INDEX NO. E2020001864
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 12/13/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2928205
Book Page CIVIL
Return To: No. Pages: 6
MICHAEL R. WOLFORD
350 Linden Oaks Instrument: EXHIBIT(S)
Third Floor
Rochester, NY 14625 Control #: 202112130150
Index #: E2020001864
Date: 12/13/2021
DOE, LG 55 Time: 10:01:49 AM
GRASSO, JOSEPH A.
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202112130150 Index #
INDEX : E2020001864
NO. E2020001864
FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 12/13/2021
EXHIBIT A
202112130150 IndexNO.
INDEX #: E2020001864
E2020001864
FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM
NYSCEF DOC. NO. 73
78 RECEIVED NYSCEF: 12/09/2021
12/13/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt #
Book Page
Return To: No. Pages: 4
Colleen Freiheit
25 Delaware A e Instrument: MISCELLANEOUS DOCUMENT
Buffalo, NY 14202
Control #: Unrecorded #8755093
Index #: E2020001864
Date:
DOE, LG 55 Time:
GRASSO, JOSEPH A.
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202112130150 IndexNO.
INDEX #: E2020001864
E2020001864
FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM
NYSCEF DOC. NO. 73
78 RECEIVED NYSCEF: 12/09/2021
12/13/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF MONROE
_______________________________________________
LG 55 DOE,
Plaintiff,
DECISION
v. Index No. E2020001864
JOSEPH A. GRASSO,
Defendant.
_______________________________________________
Defendant, Joseph A. Grasso, moved to vacate plaintiff's Notice of Deposition dated July
9, 2020 and for an Order directing plaintiff to appear for a deposition, (NYSCEF motion 005).
Plaintiff opposed the motion.
This case was brought pursuant to the Child Victims Act (CPLR 214-g). Plaintiff claims
sexual assault by defendant from 2002 through 2003 at Siena Catholic Academy and/or St.
Thomas More Church.
Plaintiff served a Notice of Deposition on July 9, 2020. Though the matter is venued in
Monroe County, in plaintiff's Notice, the location of the deposition is listed as the office of
plaintiff's attorney, which is located in Erie County. Defendant's Notice to take plaintiff's
deposition was served on July 10, 2020, with a location in Monroe County as the place of the
deposition.
In support of the motion, defendant argues that plaintiff's Notice of Deposition is
defective pursuant to CPLR 3110 and that defendant is prepared to move forward with plaintiff's
deposition.
202112130150 IndexNO.
INDEX #: E2020001864
E2020001864
FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM
NYSCEF DOC. NO. 73
78 RECEIVED NYSCEF: 12/09/2021
12/13/2021
In opposition, plaintiff argues that defendant's Notice of Motion is defective because it
fails to list the grounds for the motion and that plaintiff is prejudiced by the absence of that
information. It is noted however, that the Notice of Motion requests an Order vacating plaintiff's
Notice of Deposition and directing plaintiff to appear for a deposition. In addition, the
Attorney's Affirmation submitted in support of the motion cites to CPLR 3110 and argues the
basis for the motion. Plaintiff also cites to written communications with counsel for defendant
made following service of plaintiff's Notice of Deposition, which show plaintiff attempted to
make arrangements to conduct defendant's deposition at a location in Monroe County. It is
therefore difficult to discern how plaintiff is prejudiced by defendant's failure to indicate grounds
in the Notice of Motion.
The question here is one of priority of deposition. Plaintiff's Notice of Deposition was
served first in time but contains an improper location for the deposition. Defendant's Notice of
deposition was served second in time but contains a proper location.
Pursuant to CPLR 3110(1), the deposition of a party shall be taken within the county in
which he resides or has an office for the regular transaction of business in person or where the
action is pending. Here, defendant is a resident of Rensselaer County and the action is pending
in Monroe County. Erie County is an improper location for the deposition and therefore the
plaintiff’s deposition notice is defective.
CPLR 3106 (a) governs priority of depositions. "As a general rule, in the absence of
'special circumstances', priority of examination belongs to the defendant if a notice therefor is
served within the time to answer; otherwise, priority belongs to the party who first serves a
notice of examination" Bucci v Lydon, 116 A.D.2d 520, 521 [1st Dept 1986] citing to CPLR
3106 [a]).
2
202112130150 IndexNO.
INDEX #: E2020001864
E2020001864
FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM
NYSCEF DOC. NO. 73
78 RECEIVED NYSCEF: 12/09/2021
12/13/2021
Here, where plaintiff's deposition notice is defective and there is no evidence of special
circumstances, "there should be no deviation from the right of priority of examination normally
accorded a defendant" Goldberg v. Freedman, 33 A.D.2d 754 [1st Dept 1969]). Accordingly,
defendant's motion is granted, and counsel is to proceed with plaintiff's deposition.
Counsel for the defendant is to submit an order in 30 days attaching a copy of this
Decision to the order.
DATED: December 9, 2021
___________________
Buffalo, New York
_____________________________
Hon. Deborah A. Chimes, J.S.C.
3
Document Filed Date
December 13, 2021
Case Filing Date
February 19, 2020
Category
Torts - Child Victims Act
Status
Disposed-Court Date/Application Pending
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Preview
FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM INDEX NO. E2020001864 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 12/13/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2928205 Book Page CIVIL Return To: No. Pages: 6 MICHAEL R. WOLFORD 350 Linden Oaks Instrument: EXHIBIT(S) Third Floor Rochester, NY 14625 Control #: 202112130150 Index #: E2020001864 Date: 12/13/2021 DOE, LG 55 Time: 10:01:49 AM GRASSO, JOSEPH A. Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202112130150 Index # INDEX : E2020001864 NO. E2020001864 FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 12/13/2021 EXHIBIT A 202112130150 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM NYSCEF DOC. NO. 73 78 RECEIVED NYSCEF: 12/09/2021 12/13/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # Book Page Return To: No. Pages: 4 Colleen Freiheit 25 Delaware A e Instrument: MISCELLANEOUS DOCUMENT Buffalo, NY 14202 Control #: Unrecorded #8755093 Index #: E2020001864 Date: DOE, LG 55 Time: GRASSO, JOSEPH A. Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202112130150 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM NYSCEF DOC. NO. 73 78 RECEIVED NYSCEF: 12/09/2021 12/13/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF MONROE _______________________________________________ LG 55 DOE, Plaintiff, DECISION v. Index No. E2020001864 JOSEPH A. GRASSO, Defendant. _______________________________________________ Defendant, Joseph A. Grasso, moved to vacate plaintiff's Notice of Deposition dated July 9, 2020 and for an Order directing plaintiff to appear for a deposition, (NYSCEF motion 005). Plaintiff opposed the motion. This case was brought pursuant to the Child Victims Act (CPLR 214-g). Plaintiff claims sexual assault by defendant from 2002 through 2003 at Siena Catholic Academy and/or St. Thomas More Church. Plaintiff served a Notice of Deposition on July 9, 2020. Though the matter is venued in Monroe County, in plaintiff's Notice, the location of the deposition is listed as the office of plaintiff's attorney, which is located in Erie County. Defendant's Notice to take plaintiff's deposition was served on July 10, 2020, with a location in Monroe County as the place of the deposition. In support of the motion, defendant argues that plaintiff's Notice of Deposition is defective pursuant to CPLR 3110 and that defendant is prepared to move forward with plaintiff's deposition. 202112130150 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM NYSCEF DOC. NO. 73 78 RECEIVED NYSCEF: 12/09/2021 12/13/2021 In opposition, plaintiff argues that defendant's Notice of Motion is defective because it fails to list the grounds for the motion and that plaintiff is prejudiced by the absence of that information. It is noted however, that the Notice of Motion requests an Order vacating plaintiff's Notice of Deposition and directing plaintiff to appear for a deposition. In addition, the Attorney's Affirmation submitted in support of the motion cites to CPLR 3110 and argues the basis for the motion. Plaintiff also cites to written communications with counsel for defendant made following service of plaintiff's Notice of Deposition, which show plaintiff attempted to make arrangements to conduct defendant's deposition at a location in Monroe County. It is therefore difficult to discern how plaintiff is prejudiced by defendant's failure to indicate grounds in the Notice of Motion. The question here is one of priority of deposition. Plaintiff's Notice of Deposition was served first in time but contains an improper location for the deposition. Defendant's Notice of deposition was served second in time but contains a proper location. Pursuant to CPLR 3110(1), the deposition of a party shall be taken within the county in which he resides or has an office for the regular transaction of business in person or where the action is pending. Here, defendant is a resident of Rensselaer County and the action is pending in Monroe County. Erie County is an improper location for the deposition and therefore the plaintiff’s deposition notice is defective. CPLR 3106 (a) governs priority of depositions. "As a general rule, in the absence of 'special circumstances', priority of examination belongs to the defendant if a notice therefor is served within the time to answer; otherwise, priority belongs to the party who first serves a notice of examination" Bucci v Lydon, 116 A.D.2d 520, 521 [1st Dept 1986] citing to CPLR 3106 [a]). 2 202112130150 IndexNO. INDEX #: E2020001864 E2020001864 FILED: MONROE COUNTY CLERK 12/13/2021 09:57 AM NYSCEF DOC. NO. 73 78 RECEIVED NYSCEF: 12/09/2021 12/13/2021 Here, where plaintiff's deposition notice is defective and there is no evidence of special circumstances, "there should be no deviation from the right of priority of examination normally accorded a defendant" Goldberg v. Freedman, 33 A.D.2d 754 [1st Dept 1969]). Accordingly, defendant's motion is granted, and counsel is to proceed with plaintiff's deposition. Counsel for the defendant is to submit an order in 30 days attaching a copy of this Decision to the order. DATED: December 9, 2021 ___________________ Buffalo, New York _____________________________ Hon. Deborah A. Chimes, J.S.C. 3