New York State Court of Claims

New York State Court of Claims

PUGH v. THE STATE OF NEW YORK, #2000-005-541, Claim No. 97271, Motion No. M-62157


Claimant's motion for the production of witnesses and documents at trial is granted to the extent noted and otherwise denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
James PughPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Patricia M. Bordonaro, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On August 25, 2000, the following papers, numbered 1 to 5, were read on motion by Claimant for the production of witnesses and documents for trial on September 28, 2000:

1, 2 Notice of Motion, Affidavit and Exhibit Annexed

3 Letter in Opposition from Defendant dated August 25, 2000

4, 5 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted to the extent noted and otherwise denied.

The claim herein alleges the negligence of the State of New York in failing to protect the Claimant when he was assaulted and slashed at Auburn Correctional Facility on July 2, 1997, in the "main yard." Claimant alleges in his claim that the Defendant had actual notice of the pending attack.

In furtherance of his claim, and in response to the Court's directive to make a motion for witnesses and documents to be available at trial, Claimant seeks (1) a list of names of the correction officers assigned to the guard post on the 3 - 11 shift on the day in question; and (2) "all related documents" related to the July 12, 1997 "Involuntary Protective Custody Hearing". He also seeks the testimony of (1) Correction Officer Kevin Wise, the first officer informed by Claimant of the assault and who purportedly will testify that he was never near the guard post area, (2) Sergeant Mark Valentino, purportedly the second officer to learn of his injuries, and (3) Dr. Pang Kooi, to testify as to the injuries sustained.

Claimant advises that he intends to offer into evidence Exhibit A to his motion papers, a drawing of the main yard, and a tape recording of the above-noted Involuntary Protective Custody Hearing. The admissibility of these items can be determined at the time of trial.

The Defendant objects to the requests for the list of the names of officers assigned to the yard post (Item 1 above) on the grounds that it is in the nature of a discovery request and has no bearing on testimony of witnesses at trial. I will direct the Defendant to have such a list available at trial should Claimant be able to persuade me at trial of the necessity and materiality thereof. Defendant advises that there are no documents, only a tape of the July 12 hearing. Defendant will provide a copy of the cassette tape of the hearing of July 12, 1997, as well as having a transcript thereof available for the trial of this matter. No further order in this regard is necessary.

With respect to the requested testimony of Dr. Kooi, Defendant will provide at trial a certified copy of the pertinent portions of Claimant's ambulatory health records. I decline to direct Dr. Kooi's production at this time, subject to review of said health records. In any event, it does not appear that Dr. Kooi was sought as an expert witness, but rather as a treating physician. I will consider the necessity of his testimony after consideration of the Defendant's liability.

Claimant has not demonstrated the relevance or materiality of Sgt. Valentino's testimony, suggesting nothing more than he was the second officer to learn of his injuries. However, it appears that C.O. Wise purportedly will offer testimony consistent with his theory that certain guards were not at their posts. I direct the Defendant to have C.O. Wise available to testify at the trial hereof without the necessity of subpoena. The motion is granted to the extent noted, and otherwise denied.

August 30, 2000
Rochester, New York

Judge of the Court of Claims