Opinion
# 2014-048-136Claim No. 121859Motion Nos. M-84376M-84569
04-29-2014
ROY CASTLEBERRY v. THE STATE OF NEW YORK
ROY CASTLEBERRY, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney ONEIDA COUNTY ATTORNEY By: Lawrence A. Sardelli, Esq. Assistant County Attorney
Synopsis
The Court denied Claimant's CPLR 1101 motion, but granted, in part, Claimant's motion seeking certain testimonial subpoenas.
Case information
UID: | 2014-048-136 |
Claimant(s): | ROY CASTLEBERRY |
Claimant short name: | CASTLEBERRY |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 121859 |
Motion number(s): | M-84376, M-84569 |
Cross-motion number(s): | |
Judge: | GLEN T. BRUENING |
Claimant's attorney: | ROY CASTLEBERRY, Pro Se |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney ONEIDA COUNTY ATTORNEY By: Lawrence A. Sardelli, Esq. Assistant County Attorney |
Third-party defendant's attorney: | |
Signature date: | April 29, 2014 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant, Roy Castleberry, seeks to recover damages for personal property that was allegedly lost after he was transported from the Central New York Psychiatric Center (CNYPC) located in Marcy, New York to the Erie County Jail, located in Buffalo, New York for certain proceedings, and then back to the CNYPC. Specifically, Claimant alleges that 12 days after he returned to CNYPC, on February 17, 2010, he retrieved his property from Secure Care Treatment Aide (SCTA) Edward Camp and realized that a gold chain and a gold cross were missing. Claimant has filed two motions. The first motion (Motion No. M-84376) seeks an order compelling certain individuals to appear as witnesses at the trial of this action. The second motion (Motion No. M-84569) is an application, pursuant to CPLR 1101 (a), seeking poor person status. Defendant opposes both of Claimant's motions, and the Oneida County Department of Law opposes Claimant's motion seeking relief pursuant to CPLR 1101.
In first addressing Claimant's motion seeking poor person status, in support of his application, Claimant asserts that he receives $32.00 per week as a participant in the resident worker program at the CNYPC (see Claimant's Affidavit, sworn to on March 19, 2014, ¶ 2) and that he has no other savings, property, assets, or income. Claimant also submits his patient account summary, which indicates that, at the end of January 2014, he had an account balance of $219.04, at the end of February 2014, he had an account balance of $92.07 and, as of March 5, 2014, he had an account balance of $79.02. In opposition, Defendant argues, among other things, that Claimant's application fails to comply with CPLR 1101 (a) in that the motion papers do not set forth sufficient facts so that the Court can ascertain the merits of the action and, if requested, this matter does not implicate a fundamental right warranting the assignment of counsel. The Oneida County Attorney also opposes Claimant's motion, contending that he has failed to present sufficient facts so that the merits of the Claim can be ascertained.
Pursuant to CPLR § 1101 (a), a motion for permission to proceed as a poor person must be supported with an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses.
Here, while Claimant's monthly income and lack of any other sources of income is a compelling reason to grant Claimant the relief he seeks (see Matter of Benyi v Broome County Sheriff's Dept., 158 AD2d 869, 870 [3d Dept 1990]), Claimant's application is devoid of any facts that would enable an evaluation of the merits of the Claim. Rather, Claimant asserts that "[t]he facts of my case are described in my claim and other papers filed with the court" (Claimant's Affidavit, sworn to on March 19, 2014, ¶ 10). While the Court and Defendant is privy to the record in this matter, and Claimant's recitation of the facts would be seemingly repetitive in light of Claimant's motion seeking trial subpoenas, the Oneida County Attorney - who is required to be served with a copy of the application for poor person status (see CPLR 1101 [c]) - is not privy to that information, as there is no evidence that it has been served with either the Claim or Claimant's motion seeking the issuance of subpoenas. Accordingly, Claimant's application fails to comply with CPLR 1101 (a), and the Court is constrained to deny Claimant's Motion No. M-84569, with leave to renew upon proper papers (see Matter of Marcus C., 136 AD2d 971, 971 [4th Dept 1988]).
The Court will next address Claimant's motion seeking the issuance of trial subpoenas.
Specifically, Claimant seeks to compel the trial testimony of the following CNYPC employees: SCTA Edward Camp, SCTA Knopka, SCTA John Guarachio, and Safety Security Services Sergeant Moskal. Claimant also seeks a subpoena to compel the trial testimony of a nonparty - Richard Winnie - who is a resident at the CNYPC.
In support of his application, Claimant asserts that the anticipated testimony of the individuals will establish who was in possession of his property before it was allegedly lost. Claimant alleges that SCTA Knopka escorted Claimant to Erie County and took possession of Claimant's property, including the gold chain and gold cross, which was turned over to the Erie County Sheriff's Deputy for storage. Upon his discharge from Erie County, Claimant asserts that SCTA Guarachio and SCTA Okowski observed him inspect his property, and then escorted him back to the CNYPC. Claimant asserts that SCTA Guarachio witnessed SCTA Okowski give Claimant's property to SCTA Shelby Ferguson, that SCTA Ferguson thereafter gave Claimant's property to SCTA Camp, who then called Claimant to retrieve his property after his return to CNYPC. Claimant asserts that Sergeant Moskal conducted an investigation into the claim and issued a report. Claimant asserts that Richard Winnie will testify that after the loss, Claimant borrowed his gold chain and cross, which is intended to rebut photographic evidence that Claimant was in possession of the lost items after his return to the CNYPC.
Defendant identifies SCTA Okowski as SCTA Olkowski. Claimant has not requested subpoenas for SCTAs Okowski and Ferguson, and Defendant has indicated that it will call those individuals as witnesses at the trial of this action (see Affirmation of Thomas Trace, Esq., ¶ 2).
In opposition to Claimant's motion, Defendant asserts certain procedural challenges to the motion and argues that, in the event that the anticipated testimony is found to be material and necessary to the prosecution of this Claim, the subpoenas must be served on the State employees personally and that, except for Mr. Winnie's $15.00 statutory witness fee, which should be paid to Mr. Winnie, the statutory witness fees ($15.00 per witness) for all remaining witnesses and round-trip mileage costs ($3.22 per witness) for all witnesses be made payable to the Office of Mental Health (OMH). Defendant also seeks an additional $137.16, made payable to the OMH to cover the costs of a SCTA and a security guard to accompany Mr. Winnie on the date of trial. However, arrangements have been made so that the trial of this matter, scheduled to commence on May 29, 2014 at 9:30 a.m., may take place at the Central New York Psychiatric Center, rather than at the Courtroom at the Court of Claims in Utica, New York. Accordingly, a determination regarding the allocation of subpoena costs and fees is premature, as costs demanded may not be incurred.
Defendant has calculated the round-trip mileage from the CNYPC to the Court of Claims Courtroom in Utica, New York to be 14 miles at 23 cents per mile.
To the extent that Defendant makes procedural challenges to Claimant's motion, Defendant's counsel was made aware of Claimant's request for the sought-after subpoenas at a November 12, 2013 telephone conference with the Court, at which time counsel requested to be heard on the issue. As Defendant has not articulated any prejudice by the subsequent filing of Claimant's anticipated motion, the Court will disregard any technical defects with respect to the motion (see CPLR 2001) and, as intended by the parties, will treat Defendant's opposition papers as a motion to quash the requested subpoenas (see CPLR 2304). Such an application should be granted "[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry" (Kapon v Koch, __ NY3d __, __ 2014 NY Slip Op 02327 [2014] [internal quotation marks omitted]; see also Matter of Hogan v Cuomo, 67 AD3d 1144, 1145 [3d Dept 2009]). Except for SCTA Knopka, who is not alleged to have any personal knowledge regarding the whereabouts of Claimant's property after Claimant inspected his property upon his discharge from Erie County, the anticipated testimony tends to establish who was in possession of the items before they were allegedly lost. As Defendant has not established that the anticipated testimony of SCTA Edward Camp, SCTA John Guarachio, Safety Security Services Sergeant Moskal and Richard Winnie is utterly irrelevant to any proper inquiry, the Court concludes that Claimant is entitled to subpoena those individuals to testify at the trial of this action.
Accordingly, it is hereby
ORDERED that, that part of Claimant's Motion No. M-84376 seeking the testimonial subpoenas of SCTA Edward Camp, SCTA John Guarachio, Safety Security Services Sergeant Moskal and Richard Winnie is granted, and is otherwise denied; and it is further
ORDERED that within ten (10) days of the date that this Decision and Order is filed in the Office of the Clerk of the Court of Claims, Defendant shall advise Claimant whether SCTA Edward Camp, SCTA John Guarachio and Safety Security Services Sergeant Moskal are currently employed by the OMH; and it is further
ORDERED that, if SCTA Edward Camp, SCTA John Guarachio or Safety Security Services Sergeant Moskal are currently employed by the OMH, Claimant may serve a judicial subpoena for the trial testimony of each current OMH employee by serving upon the Attorney General's Office, one subpoena addressed to each witness with one copy of this Decision and Order attached to each subpoena, by regular mail consistent with CPLR 2303-a and 2103 (b); and it is further
ORDERED that, if SCTA Edward Camp, SCTA John Guarachio or Safety Security Services Sergeant Moskal are no longer employed by the OMH, Claimant may serve a judicial subpoena for the trial testimony of each former OMH employee by serving a subpoena addressed to each witness with a copy of this Decision and Order upon each witness pursuant to CPLR 2303 (a) and 308; and it is further
ORDERED that upon the filing of this Decision and Order, the Court will issue and forward to Claimant a Subpoena to Produce a Person Confined, directing the Executive Director of the Central New York Psychiatric Center to produce Richard Winnie for the trial of this Claim, which is currently scheduled for May 29, 2014. Upon receipt, Claimant shall serve the Subpoena to Produce by regular mail on the Attorney General's Office consistent with CPLR 2303-a and 2103 (b).
April 29, 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed October 12, 2012;
Claimant's Motion No. M-84376, which includes correspondence, filed November 26, 2013;
Affirmation of Thomas Trace, Esq., dated January 6, 2014;
Notice of Motion (Motion No. M-84569), filed January 29, 2014;
Claimant's Affidavit in Support of Application Pursuant to CPLR 1101(d), sworn to on January 24, 2014;
Correspondence from Oneida County Department of Law, Lawrence A. Sardelli, Esq., received February 19, 2014;
Affirmation of Thomas Trace, Esq., dated March 10, 2014;
Claimant's Affidavit in Support of Application Pursuant to CPLR 1101(d), sworn to on March 19, 2014, with attachments consisting of three pages (one page being double sided).