Opinion
# 2013-041-015 Claim No. 115977 Motion No. M-83121
03-22-2013
MALIK AZ'RAEL MOSBY v. THE STATE OF NEW YORK
Synopsis
Claimant's application for an order granting permission to serve interrogatories and notice to admit on the eve of trial, and for an order permitting service of subpoenas, is denied.
Case information
UID: 2013-041-015 Claimant(s): MALIK AZ'RAEL MOSBY Claimant short name: MOSBY Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115977 Motion number(s): M-83121 Cross-motion number(s): Judge: FRANK P. MILANO MALIK AZ'RAEL MOSBY Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Douglas R. Kemp, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: March 22, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for an order "granting permission to serve interrogatories, and admission, in accordance with NY CPLR 3123, CPLR 3132, and for an order granting the claimant permission . . . to subpoena witness Charles Evans." The claim, pending since October 20, 2008, is scheduled for trial on April 11, 2013, approximately three weeks after the return date of the motion.
Claimant offers no explanation as to why he waited 4½ years, until the eve of trial, to seek the CPLR article 31 disclosure requested, and the motion is denied.
In his affidavit, claimant also seeks subpoenas for various purported employees of defendant, as well as a subpoena for fellow inmate Evans.
Claimant has failed to provide proposed subpoenas 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]). For that reason alone, the claimant's application is denied.
Further, the defendant objects to issuance of any subpoenas, asserting that claimant has not shown why the testimony of the named individuals is "material and necessary."
Contrary to the affirmation of defendant's attorney, claimant is not required to prove the relevance and necessity of a proposed witnesses's testimony prior to issuance of a trial testimony subpoena, as would be the case if the subpoena was addressed to a fellow inmate (CPLR 2302 [b]; see Matter of Martisco Bean & Grain Co., Inc. v Gerace, 124 AD2d 408 [3d Dept 1986]; Matter of Derle Farms, Inc. v Barber, 79 AD2d 1050 [3d Dept 1981]; Matter of Coney Is. Dairy Prods. Corp. v Baldwin, 243 App Div 178 [3d Dept 1935]).
Generally, it is only after an inmate-claimant serves a subpoena, issued by the Clerk of the Court of Claims (CPLR 2302 [a]), or the Court itself, on a non-inmate witness, that the defendant or witness may make an application to quash the subpoena on appropriate grounds (CPLR 2304).
In this case, however, since the trial of the claim is scheduled for April 11, 2013, approximately three weeks after the return date of the motion, the Court will treat the papers submitted by the defendant as a motion to quash the proposed subpoenas (see Court of Claims Act § 9 [8]).
Claimant asserts that the testimony of "Wm. Redmond" is "vital when it comes to a challenge of the credibility of the persons entrusted to keep records and operate the departments in which the claimant complains about."
Claimant has not shown how the testimony of "Wm. Redmond," or any of the other named persons, is relevant to the allegations of the medical malpractice claim. The request for the issuance of subpoenas is denied (see Matter of N. v Novello, 13 AD3d 631 [2d Dept 2004]).
Further, with respect to inmate Charles Evans, 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 as well.
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 the 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]).
The claim sounds in medical malpractice and claimant fails to state how and why the inmate's testimony is "material and necessary" to prosecuting his claim. The affidavit of the proposed inmate witness is more than five years old and states little more than that the witness has observed claimant to be in pain. The affidavit fails to state why the inmate's testimony is a "compelling necessity" (Sebastiano, 112 Misc 2d at 1028) to the prosecution of his claim, especially in view of the attendant cost and security issues presented to the defendant were it required to produce the witness.
The claimant's application is denied with respect to inmate Evans.
Claimant's further applications for a stay of trial and change of venue are denied.
Claimant's motion is, in all respects, denied.
Trial will proceed, as scheduled, on April 11, 2013.
March 22, 2013
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion (M-83121), filed March 11, 2013;
2. Affidavit of Malik Az Rael Mosby, sworn to March 6, 2013;
3. Affirmation in Opposition of Douglas R. Kemp, dated March 20, 2013.