Opinion
# 2019-041-032 Claim No. 130110 Motion No. M-93810 Motion No. M-93811
06-20-2019
DEREK A. HEYLIGER v. THE STATE OF NEW YORK
DEREK A. HEYLIGER Pro Se HON. LETITIA JAMES New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General
Synopsis
Claimant's motion (M-93810) for an order permitting service of subpoena on inmates for deposition testimony is denied as procedurally and substantively defective; claimant's motion (M-93811) for an order pursuant to CPLR 3108 to take written questions of inmates is denied as procedurally defective.
Case information
| UID: | 2019-041-032 |
| Claimant(s): | DEREK A. HEYLIGER |
| Claimant short name: | HEYLIGER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130110 |
| Motion number(s): | M-93810, M-93811 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | DEREK A. HEYLIGER Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 20, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate at Sing Sing Correctional Facility, requests (M-93810) a court-ordered subpoena directing defendant to produce two fellow inmates, inmate Wilson (claimant's brother) and inmate Cuevas, for deposition testimony regarding claimant's wrongful confinement claim arising from an inmate disciplinary hearing. Claimant further requests (M-93811) an order pursuant to CPLR 3108 to take a deposition on written questions of fellow inmates Wilson and Cuevas.
The defendant opposes the motions.
Claimant's motions are denied.
With respect to claimant's request for a court-ordered subpoena (M-93810), CPLR 2302 (b) provides that a "subpoena to compel . . . attendance of any person confined in a penitentiary or jail, shall be issued by the court. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day's notice to the person having custody of the . . . person confined."
Claimant has failed to provide notice of the application to "the person having custody of the . . . person confined" and the motion must be denied on that ground alone.
Further, even had claimant made the motion properly, the application remains substantively defective. In Sebastiano v State of New York (112 Misc 2d 1027, 1028 [Ct Cl 1981]), the court stated that the CPLR 2302 requirement of a court-ordered subpoena with respect to inmates:
"[I]s to permit the court to exercise discretion in requiring the attendance of prisoners at a trial. A court should not, without a compelling necessity, require the Department of Correctional Services to transport 12 prisoners to a central point from such widely separated locations as Clinton, Greenhaven, Great Meadow, Sing Sing, Eastern and Auburn. The security problem is serious and the expense would be burdensome to the taxpayers of the State of New York."
The burdens imposed on a correctional facility, and taxpayers, in producing inmates for pre-trial deposition testimony is no less significant with respect to testimony at trial. It is the claimant's burden to show that the testimony of the requested inmate is "necessary to the prosecution of his claim" (Ramirez v the State of New York, [Ct Cl, Hard, J., #2006-032-049; Claim No. 105701, Motion No. M-71478, June 13, 2006]; Livingston v State of New York, 267 AD2d 972 [4th Dept 1999]).
Claimant states that the inmates' testimony is "relevant and essential" because the proposed inmate witnesses' testimony "would be reasonably likely to lead to information about the nature and location of the incident giving rise to Claimant's claims." Claimant fails to offer any purported facts or details as to how the fellow inmates' testimony is necessary to prosecution of the wrongful confinement claim.
Claimant himself can testify to the nature and location of the incident underlying his claim. The Court notes that the claim filed by claimant states that inmate Cuevas, from whom claimant seeks testimony, has already testified at claimant's disciplinary hearing.
Claimant has failed to show that the requested inmate testimony is a "compelling necessity" (Sebastiano, 112 Misc 2d at 1028) to the prosecution of his claim, especially in view of the cost and security issues presented to the defendant.
With respect to claimant's request (M-93811) an order pursuant to CPLR 3108 to take a deposition on written questions of fellow inmates Wilson and Cuevas, the statute provides as follows:
"A deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state. A commission or letters rogatory may be issued where necessary or convenient for the taking of a deposition outside of the state."
Claimant has offered no proof that either of the proposed deponents (Wilson and Cuevas) have stipulated to a deposition upon written questions or that "the testimony is to be taken without the state."
Claimant's motions (M-93810 and M-93811) are denied.
June 20, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Affidavit of Derek A. Heyliger in Support of Application for a Subpoena, sworn to March 26, 2019, and attached exhibits (M-93810); 2. Affirmation in Opposition of Christina Calabrese, dated April 29, 2019 (M-93810); 3. Claim, filed August 11, 2017; 4. Affirmation in Reply of Derek Heyliger, dated May 14, 2019; 5. Claimant's Notice of Motion, filed April 17, 2019 (M-93811); 6. Affidavit of Derek A. Heyliger in Support of Motion Pursuant to §3108 of CPLR, sworn to April 9, 2019; 7. Affirmation in Opposition of Christina Calabrese, dated April 29, 2019 (M-93811).