Opinion 92-9

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

VOLUNTEER FIREFIGHTERS -- Reimbursement for Expenses (appearance at attorney's office in compliance with subpoena for pre-trial questioning)
WORDS AND PHRASES -- "Court or Other Tribunal" (meaning for purposes of General Municipal Law, §72-o - appearance at attorney's office for pre-trial questioning)

GENERAL MUNICIPAL LAW, §72-o; CIVIL PRACTICE LAW AND RULES, §3101 et seq.: A volunteer firefighter appearing at an attorney's office in compliance with a subpoena for pre-trial questioning is making an appearance before the court for purposes of General Municipal Law §72-o, and, therefore, is eligible for reimbursement of actual and necessary expenses of travel, meals and lodging and actual lost wages incurred by reason of such appearance as provided therein.

You ask whether General Municipal Law, §72-o authorizes a fire district to reimburse a volunteer firefighter for expenses and lost wages in connection with complying with a subpoena to appear at an attorney's office for pre-trial questioning.

General Municipal Law, §72-o provides that, when authorized by the board of fire commissioners, the chief officer of the fire district fire department, subject to any rules or regulations governing the department, may authorize reimbursement of all actual and necessary expenses of travel, meals and lodging necessarily and reasonably incurred by volunteer officers or members of the department who "appear before a court or other tribunal". Similarly, section 72-o also authorizes reimbursement of all actual lost wages necessarily and reasonably incurred by volunteer fire officers and firefighters, up to a maximum of one hundred dollars per day. Reimbursement is authorized only when, among other circumstances: the volunteer has been issued a subpoena to appear and give testimony; the chief officer has been notified of the volunteer's receipt of the subpoena; the proceeding relates to activities arising from the volunteer's duties; and the volunteer is not the subject of, involved with, or financially interested in the proceeding. Therefore, a volunteer who is subpoenaed for pre-trial questioning at an attorney's office may not be reimbursed pursuant to section 72-o unless compliance with the subpoena requires the volunteer to "appear before a court or other tribunal".

Section 72-o does not define what it means to "appear before a court or other tribunal". Read narrowly, the phrase can be construed as requiring a physical presence in a courtroom before a judge (cf., e.g., People v Thumser, 144 Misc 2d 425, 544 NYS2d 952; Lieberman v Perez-Veridiano, 142 Misc 2d 223, 536 NYS2d 388), which would preclude reimbursement for pre-trial questioning conducted at an attorney's office. The word "court", however, has also been construed broadly to suggest that a person can appear before a court without actually being present in a courtroom before a judge.

In People ex rel Choate v Barrett, 56 Hun 351, 9 NYS 321, affd 121 NY 678, the court interpreted the phrase "during the sitting of the court, and in its immediate view and presence", and held that a newspaper reporter committed a contempt by concealing himself in a closet in a jury room and taking notes on the jury's deliberations. In reaching this conclusion, the court reasoned that:

The contempt was not committed in the immediate view and presence of the judge. The judge, however, is not the court. A court has been well defined to be 'an organized body, with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz., attorneys and counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings.' Burrill, Law Dict. Lord Coke describes it to be 'a place where justice is judicially administered.' Referring to this definition, Wait, Law & Pr. 221, says that the term 'place' must be understood figuratively, for a court is property composed of persons consisting of the judge or judges, and other officers, united together in a civil organization, and invested by law with the requisite functions for the administration of justice. * * *

[The judge] is a constituent part of the organization, but he is not the court. Nor is the court-room the court, nor the jury room, nor the petit jury. The court is the totality of the constituent parts. It consists of the entire judicial organization for the trial of causes, and it is immediately present whenever and wherever, from the opening to the adjournment of the sitting, these constituent parts are actually performing the functions devolving upon them by law. (People ex rel Choate v Barrett, supra, 9 NYS at 322-323).

Thus, the court in this case adopted a broad construction of the word "court" to conclude that a person can be in the presence of a court during a phase of a judicial proceeding which does not take place in a courtroom before a judge. For the reasons stated below, it is our opinion that the word "court" in section 72-o should be given a similarly broad construction.

Pre-trial questioning, that is, the taking of depositions upon oral questions, is one of the disclosure devices authorized by Civil Practice Law and Rules (CPLR), article 31 (see CPLR 3102[a]). The purpose of disclosure is ". . . to advance the function of a trial to ascertain truth and to accelerate the disposition of suits" (Allen v Crowell-Collier Publishing Co. 21 NY2d 403 at 407, 288 NYS2d 449 at 452). Although article 31 envisions a maximum disclosure of facts with a minimum of judicial supervision (see Wiseman v American Motors Sales Corp, 103 AD2d 230, 479 NYS2d 528; Spector v Antenna and Radome Research Associates Corp, 25 AD2d 569, 267 NYS2d 843), the courts are empowered to supervise the disclosure process (see CPLR 3102[b], 3103, 3104, 3124-3126), and are vested with broad discretion to ensure that adequate pre-trial discovery is accomplished (see e.g. Hall & Company Inc. v Steiner and Mondore, 147 AD2d 225, 543 NYS2d 190).

Pre-trial questioning generally takes place after an action has been commenced (CPLR 3106[a]; cf. CPLR 3102[c]). Depositions may be taken from, among others, a "party" to the litigation, an officer, director, member, agent or employee of a party, or from any other person upon notice stating the circumstances or reasons for the deposition (see CPLR 3101[a][1],[4]; cf., e.g., Slabakis v Drizin, 107 AD2d 45, 485 NYS2d 270; Dioguardi v St. John's Riverside Hospital, 144 AD2d 333, 533 NYS2d 915, pertaining to the circumstances under which a non-party witness may be deposed). It is only when the individual to be deposed is neither a party nor an officer, director, member or employee of a party, however, that the individual must be subpoenaed (CPLR 3106[6]). A resident non-party witness must be deposed within the county in which he or she resides, is regularly employed, or has an office for the regular transaction of business in person (CPLR 3110[2]), but need not be deposed in a courthouse (cf. CPLR 3110[3], requiring certain examinations to be in the court in which the action is pending unless the parties agree otherwise; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3110:4, p 480).

The deposition is taken before an impartial officer who administers an oath to the witness (CPLR 3113[a],[b]). The witness is examined and cross-examined, the testimony is recorded, and objections are preserved in the record (CPLR 3113[b],[c]). Thereafter, a transcript is prepared, the witness examines the transcript, enters any changes, and signs it in the presence of an officer authorized to administer an oath (CPLR 3116[a]). The original of the transcript must be filed with the clerk of the court in which the case is to be tried unless each party receives a copy or the parties stipulate to waive the filing (CPLR 3116[b]). A deposition may be used at trial or upon the hearing of a motion or an interlocutory proceeding subject to certain enumerated limitations (CPLR 3117).

Thus, pre-trial questioning is an integral part of a civil action or proceeding, conducted under the ultimate supervision and control of the court. As such, we believe that reimbursement for expenses and lost wages in connection with an appearance at an attorney's office for pre-trial questioning is consistent with the legislative purpose of section 72-o.

Section 72-o was enacted by chapter 456 of the Laws of 1988 because:

Volunteer firefighters are often subpoenaed to testify in court proceedings which relate specifically to their firefighting activities. They are usual witnesses in arson prosecutions, and may also be called to testify in tort claims against a fire district or municipality. The time and expense involved in such court appearances are over and above the voluntary service normally provided by the firefighter, and not something which he should have to fund from his own money. Any such expense incurred by the firefighter are [sic] rightly an expense of the fire district or municipality, and should be paid by them (1988 NYS Legislative Annual, p 187).

Thus, the purpose of section 72-o is to ease the financial burden imposed on volunteer firefighters by mandatory appearances in "court proceedings" involving public interests. A broad construction of the phrase "to appear before a court or other tribunal", as encompassing a subpoenaed appearance at an attorney's office for pre-trial questioning, is consistent with this purpose because the questioning is a preliminary phase of a judicial proceeding and is conducted under the ultimate supervision and control of the court. Moreover, there is nothing in the legislative history of section 72-o which suggests a rationale for narrowly construing the phrase so as to limit reimbursement to those instances where the questioning occurs in a courtroom before a judge.

Accordingly, based on the role of pre-trial questioning in a civil action or proceeding and the purpose of section 72-o, we believe that when a volunteer firefighter complies with a subpoena issued in the course of an action or proceeding and appears at an attorney's office for pre-trial questioning, the volunteer "appears before a court" within the meaning of section 72-o. Therefore, it is our opinion that section 72-o authorizes a fire district to reimburse a volunteer firefighter as provided therein, for complying with a subpoena to appear at an attorney's office for pre-trial questioning.

April 9, 1992
Cornelius F. Healy
Deputy State Comptroller