Opinion
# 2016-049-043 Claim No. 127911 Motion No. M-89359
11-30-2016
VANESSA GATHERS v. THE STATE OF NEW YORK
Lisa A. Cahill, Esq. Eric T. Schneiderman, New York State Attorney General By: Nicole Procida, Assistant Attorney General
Synopsis
Case information
| UID: | 2016-049-043 |
| Claimant(s): | VANESSA GATHERS |
| Claimant short name: | GATHERS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127911 |
| Motion number(s): | M-89359 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Lisa A. Cahill, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Nicole Procida, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 30, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In this action, claimant Vanessa Gathers alleges that she is entitled to damages for wrongful conviction under Court of Claims Act § 8-b. She now moves for issuance of subpoenas on the Kings County District Attorney's Office and the New York City Police Department. By letter dated October 19, 2016, claimant has withdrawn her application for a third subpoena directed at the New York State Assembly.
CPLR 2307 provides, in relevant part:
"A subpoena duces tecum to be served upon a library, or a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of any books, papers or other things, shall be issued by a justice of the supreme court in the district in which the book, paper or other thing is located or by a judge of the court in which an action for which it is required is triable. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day's notice to the library, department, bureau or officer having custody of the book, document or other thing and the adverse party."
CPLR 3120(4), which sets forth the process for document discovery, states: "Nothing contained in this section shall be construed to change the requirement of section 2307 that a subpoena duces tecum to be served upon a library or a department or bureau of a municipal corporation, or of the state, or an officer thereof, requires a motion made on notice to the library, department, bureau or officer, and the adverse party, to a justice of the supreme court or a judge of the court in which the action is triable."
Gathers has submitted the requisite motion, and her papers indicate that she has done so under proper notice to the recipients. No objection or opposition has been received, and the subpoenas manifest no facial defect. Therefore, Motion No. M-89359 is granted. Upon filing of this Decision and Order, the signed subpoenas will be returned to claimant's counsel under separate cover.
Despite the language of these sections, the statutory provision for a subpoena on a municipality to be made by motion on notice is "often ignored" (see People v Ehigie, 6 Misc 3d 1008[A] [Crim Ct, Bx Cty 2004]). I need not address here whether a subpoena on a municipal entity may be signed by the Court even if a motion is not made, since Gathers has filed a motion in this instance.
November 30, 2016
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered 1. Claimant's Notice of Motion, Affirmation in Support and annexed Exhibits.