Opinion
# 2012-041-097 Claim No. 115676 115678, Motion No. M-82551
12-13-2012
ANTONIO JONES v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for an order permitting service of subpoena on inmate is denied as procedurally and substantively defective. Case information
UID: 2012-041-097 Claimant(s): ANTONIO JONES Claimant short name: JONES Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115676, 115678 Motion number(s): M-82551 Cross-motion number(s): Judge: FRANK P. MILANO ANTONIO JONES Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Michael C. Rizzo, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: December 13, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate at Southport Correctional Facility, requests court-ordered subpoenas directing defendant to produce four employees and an inmate to testify at the trial of these claims on January 17, 2013. The claims seek recovery for defendant's alleged negligence in failing to protect claimant from an assault by a fellow inmate (Claim No. 115676) and medical malpractice (Claim No. 115678).
The defendant has agreed to voluntarily produce three of the requested employees: Bentley, Renadette and Downs. Defendant cannot produce former correction officer Blaise who has retired and is no longer subject to defendant's control.
Claimant has failed to provide a proposed subpoena for former correction officer Blaise for the Court's review and signature (see Johnson v State of New York, UID No. 2004-030-563; [Ct Cl, Scuccimarra, J., Aug. 4, 2004]). To that extent, the claimant's application is denied.
Defendant opposes the motion with respect to the request for a subpoena to be served on inmate Felipe Burgos.
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.
Claimant's motion is further procedurally defective because, like the request for a subpoena regarding retired correction officer Blaise, claimant failed to provide the Court with the proposed subpoena.
Moreover, 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."
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 State of New York, UID No. 2006-032-049; [Ct Cl, Hard, J.,, June 13, 2006]; Livingston v State of New York, 267 AD2d 972 [4th Dept 1999]).
Claimant fails to state how and why the inmate's testimony is "material and necessary" despite asserting that the witness has provided claimant "with a affidavit in this matter" and fails to state why such testimony is a "compelling necessity" to the prosecution of his claim, especially in view of the attendant cost and security issues presented to the defendant.
The claimant's application is denied with respect to inmate Burgos.
December 13, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion For Subpoena, filed November 28, 2012;
2. Statement of claimant, dated November 25, 2012;
3. Affidavit of Michael C. Rizzo, sworn to December 5, 2012.