Opinion
# 2012-048-035Claim No. 110706111519111759Motion No. M-81246
04-20-2012
TAFARI v. THE STATE OF NEW YORK
Claimant's attorney: INJAH TAFARI, Pro Se Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq. Assistant Attorney General
Synopsis
Claimant's application for the issuance of judicial subpoenas to compel the attendance of certain witnesses at trial was denied. Case information
Judge: GLEN T. BRUENING
Claimant's attorney: INJAH TAFARI, Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq. Assistant Attorney General
Decision
Injah E. Tafari commenced three actions, bearing Claim Numbers 110706, 111519 and 111759, all seeking damages for personal injuries sustained as a result of assault and battery on different occasions while an inmate at Eastern Correctional Facility in Napanoch, Ulster County, under the supervision of the Department of Correctional Services ("DOCS"). Specifically, Claim Number 110706 alleges that on March 18, 2005, while handcuffing Claimant through his cell's "feed-up hatch," a correction officer violently yanked Claimant's handcuffs which caused Claimant's left shoulder to pull out of its socket (Claim, filed March 30, 2005). Claim Number 111519 alleges that on October 10, 2005, a correction officer, while taking Claimant's lunch tray from his cell, violently grabbed and yanked Claimant's left wrist and arm, which caused Claimant's left shoulder to pull out of its socket (Claim, filed October 17, 2005). Claim Number 111759 alleges, among other things, that on November 15, 2005, a correction officer, while handcuffing Claimant through his cell's "feed-up hatch," violently pulled Claimant's right arm causing certain abrasions and causing Claimant's face to hit the cell door, breaking his right front tooth (Claim, filed December 21, 2005). The three Claims are scheduled for trial on April 27, 2012 via video conference.
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the Claims relate to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
Claimant now moves for an order compelling Defendant to produce the following individuals at the trial of these actions: Inmates Angel Hernandez (DIN 93-A-7366), Nevin Mawhinney (DIN 95-A-1003), Jacob Carrasquillo (DIN 02-A-2376), Jose Nunez (DIN 03-A-0550) and Claimant's treating orthopedic surgeon, Jonathan Holder. Claimant asserts that Inmate Hernandez testified at a disciplinary hearing arising out of the incidents forming the basis of Claim Number 110706, that Inmate Carrasquillo testified at a disciplinary hearing arising out of the incidents forming the basis of Claim Number 111519, and that Inmates Mawhinney and Nunez testified at a disciplinary hearing arising out of the incidents forming the basis of Claim Number 111759, without explaining the substance of the testimony expected from these witnesses. Claimant states summarily only that each Inmates' testimony would favor Claimant and that their testimony is needed. Claimant asserts that Jonathan Holder, as Claimant's treating physician, will testify regarding the injuries sustained and the treatment provided to Claimant's left shoulder.
Claimant provides the Court with the last name and Department Identification Number (hereinafter DIN). According to the Department of Corrections and Community Service Inmate Population Information Search, the Court has ascertained the Inmates' first names. While the DIN provided for Inmate Nunez (03-A-055) was incomplete, the Court assumes that Claimant refers to Inmate Jose Nunez (DIN 03-A-0550).
Claimant also provides the Court with copies of 24 documents he seeks to introduce as evidence at the trial of the three matters. These documents are being returned to Claimant because he has the burden to make proper offers of proof at trial, where Defendant may raise objections.
In opposition to Claimant's motion, Defendant objects to the production of the inmate witnesses, contending that Claimant has failed to establish that the testimony of those individuals is material and necessary to establishing his Claims and is otherwise unavailable from another source. Defendant also argues that Jonathan Holder is not a DOCS employee, and DOCS cannot compel him to appear at trial. In support of this contention, Defendant submits the affidavit of Tracey Gecewicz, the Assistant Director of Correctional Heath Services for DOCS, who states that Jonathan Holder is an "independently hired consultant" and not a DOCS employee (Affidavit of Tracey Gecewicz, paragraph 3).
Defendant also provides the Court with a copy of an amended complaint and verdict sheet in an action commenced by Claimant in the United States District Court for the Northern District of New York (9:07-CV-0654) pursuant to 42 USC § 1983 alleging that certain Correction Officers and other DOCS employees violated Claimant's constitutional rights by, among other things, assaulting him and subjecting him to cruel and unusual punishment (see Correspondence of Joan Matalavage, Esq., filed April 3, 2012, with attachments). By these Federal Court documents, Defendant's counsel asserts that Claim Number 111519, alleging assault on October 10, 2005 by Correction Officer T. Brown, was the subject of the Federal Court action and that the verdict sheet reflects that a jury found that Correction Officer Brown did not use force against Claimant on October 10, 2005. Inasmuch as Defendant's offer of proof is in the nature of an affirmative defense of claim or issue preclusion, the Court will entertain motions to amend or conform pleadings made at the close of proof at trial upon proper showing.
In a reply, Claimant withdraws his request for a subpoena to compel the appearance of Inmate Hernandez, but asserts that the testimony of Jonathan Holder is relevant to establish the medical care and treatment provided as a result of the injuries sustained, and that the remaining inmate witnesses have "credible testimony to present on behalf of Claimant as [they] testified at Tier III hearings on what they personally saw on the day of the incident" (Reply, dated April 11, 2012).
A pro se litigant, such as Claimant, is not authorized to issue his own subpoena compelling the attendance of a witness to testify at trial without a Court order (see CPLR § 2302 [a]). With respect to the issuance of a subpoena compelling the attendance of an inmate witness however, CPLR § 2302 (b) provides that "a subpoena to compel . . . [the] 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." Oversight of the issuance of a subpoena compelling the attendance of an inmate to testify at trial "enables the court to gauge the importance of such person's attendance, and prevent[] abuses" (Connors, McKinney's CPLR Practice Commentary C2302:3). Similarly, leave of court is required to take a pre-trial deposition of a prisoner in order "to prevent the disruption of prison routine and to provide a mechanism of court oversight before a correctional facility may be compelled to open its doors for the deposition of one of its prisoners" (Nalbach v McDonald, 244 AD2d 536, 536 [2d Dept1997]; see CPLR 3106 [c]). The Appellate Division, Third Department, has held that disclosure against a nonparty pursuant to CPLR § 3101 (a) (4) "is available only upon a showing of special circumstances, i.e., that the information sought to be discovered is material and necessary and cannot be discovered from other sources or otherwise is necessary to prepare for trial" (Cerasaro v Cerasaro, 9 AD3d 663, 665 [3d Dept 2004] [internal quotation marks and citations omitted]). In light of security concerns and the potential for facility disruption and the abuse of the subpoena process, this Court will apply the Appellate Division, Third Department, "special circumstances" standard for obtaining non-party disclosure to the issuance of a subpoena compelling the attendance at trial of "any person confined in a penitentiary or jail" (CPLR § 2302 [b]). Accordingly, to obtain subpoenas to compel the attendance of Inmates Mawhinney, Carrasquillo and Nunez at the trial of these actions, Claimant must establish that the testimony sought is material and necessary to the prosecution of his Claims and cannot be discovered from other sources or is otherwise necessary to establish his Claim.
Here, while Claimant asserts that Inmates Mawhinney, Carrasquillo and Nunez will provide him with favorable testimony, Claimant has not set forth in an affidavit the essential nature of such testimony which would allow the Court to conclude that it is more than simply relevant testimony. Moreover, Claimant has not established that the evidence to be gained by such testimony is not available from other sources or that such testimony is otherwise necessary to establish his Claim. Accordingly, the Court finds that Claimant has failed to meet his burden to establish that special circumstances require the attendance of Inmates Mawhinney, Carrasquillo and Nunez at the trial of these actions.
Next, based on the undisputed evidence that Jonathan Holder is not a DOCS employee and is not under DOCS control, the Court finds that DOCS cannot be compelled to produce Jonathan Holder at the trial of this action (see e.g. Little v Highland Hosp. of Rochester, 280 AD2d 908, 909 [4th Dept 2001]). However, as the trial of these matters is scheduled for April 27, 2012, in the interest of judicial economy, the Court will treat Claimant's application as one seeking to subpoena Dr. Holder directly and will treat Defendant's opposition as a motion seeking to quash such subpoena (see CPLR § § 2302 [a]; 2304). "Upon such a motion, it is not enough that the party issuing the subpoena establish that the disclosure sought is relevant; it must also be shown that the information sought cannot be obtained from another source" (Caruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502, 1506 [3d Dept 2011]). Here, Claimant asserts only that the witness would testify to the diagnosis and treatment of Claimant's injury, information commonly contained in the Inmate's medical records. While such testimony would be relevant to these proceedings, Claimant has not established that the substance of the testimony is unavailable from other sources, including his medical records (see Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 80 AD3d 199, 203 [3d Dept 2010]).
Accordingly, it is
ORDERED that Claimant's Motion (M-81246) relating to Claims Numbered 110706, 111519 and 111759, seeking to compel DOCS to produce Nevin Mawhinney, Jacob Carrasquillo, Jose Nunez and Jonathan Holder is denied; and it is further
ORDERED that Defendant's motion seeking to quash a subpoena ad testificandum to compel Jonathan Holder to appear at the trial of these actions is granted.
April 20, 2012
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, issued Claim Number 110706, filed March 30, 2005;
Claim, issued Claim Number 111519, filed October 17, 2005;
Claim, issued Claim Number 111759, filed December 21, 2005;
Claimant's "Motion to Produce Witnesses (Inmates and Employees)," filed March 21, 2012, with attachments consisting of a cover page entitled "24 Exhibits" and 24 pages;
Correspondence from Joan Matalavage, Esq., filed April 3, 2012 with attached Affidavit of Tracey Gecewicz, sworn to on March 30, 2012, verdict sheet and document entitled "Amended Complaint;"
Reply to Defendant's Opposition to Claimant's Motion, filed April 13, 2012.