New York State Court of Claims

New York State Court of Claims

BURR v. THE STATE OF NEW YORK, #2000-005-543, Claim No. 97058, Motion No. M-62124


Claimant's motion for an order compelling the production of certain witnesses and documents at his trial is denied except to the extent noted..

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:
David BurrPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Edward F. McArdle, 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 at the trial herein on September 27, 2000:

1, 2 Notice of Motion and Affidavit Annexed

3 Affirmation

4, 5 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is denied except to the extent noted.

The claim herein was filed on September 29, 1997, and seeks damages for the Defendant's

negligence and deliberate indifference to Claimant's medical needs. The period of time covered in the claim commences on February 3, 1997, and the last date noted therein is August 1997.

In response to the Court's directive, Claimant has made a motion for the production of numerous witnesses and documents at the trial herein on September 27, 2000. The motion was adjourned to August 25, 2000, and I shall now address Claimant's requests.

With respect to Claimant's request for the production of documents, he seeks all medical records, etc. in the possession of the Department of Correctional Services (DOCS), all correspondence to Governor Pataki and Claimant's Executive Clemency File, all correspondence from the listed 76 witnesses, test results, findings, etc. The Defendant has advised that it will supply a certified copy of Claimant's medical record at the trial of this matter. It objects to the balance of the documents sought, primarily as irrelevant to the claim herein, in particular any correspondence related to executive clemency, and a lack of specificity as to the other documents sought. I concur with the Defendant. The Claimant's medical records maintained by DOCS should satisfy the bulk of his document requests, and any sought after documents are either irrelevant or so inadequately described as to make their identification or relevance impossible to determine. Accordingly the motion for the production of documents is denied, except as to Claimant's medical records, a certified copy of which the Defendant will provide at the trial.

Claimant seeks some 76 witnesses, and generally supports his request for each by reference to numbered paragraphs in his claim. I will address each request.

As to Paragraph 1, Claimant obviously can testify on his own behalf. With respect to Paragraph 2 for Doctor Kooi, M.D., and Paragraph 12 for Doctor Anthony Graceffo, M.D., the Defendant has agreed to make one of these doctors available to testify at trial, and it is directed to do so without the necessity of a subpoena. It appears redundant and unnecessary to require the testimony of both doctors, and I decline to do so, at this time. I similarly decline to direct the testimony of Dr. Matthews (Paragraph 7).

As to Paragraphs 3, 4, and 5, seeking the testimony of Nurse Donna Adrosleo, provider No. 230; Nurse Nancy Connor, provider No. 244, and Nurse Pat, provider No. 256, respectively, and reviewing the claim paragraphs cited, it appears to me that all such allegations in the claim can be satisfied by reviewing the medical records. Accordingly, I will not require any of the three nurses to appear at the trial at this time.

As to Paragraph 6, Defendant advises that Nurse Wiwsianyk is no longer employed at Auburn, and that the medical records will suffice. The request is denied.

As to Paragraph 8, neither Prisoners' Legal Services nor its employees are employed by the Defendant. The request is denied. As to Paragraph 9, Defendant advises that First Deputy Hodges is no longer employed at Auburn, and that he did not provide medical treatment to Claimant. The cited references to the claim do not persuade me otherwise. The request is denied.

As to Paragraph 10, Defendant advises that Nurse Administrator Christine Coyne is employed at Auburn, and that the testimony of an Auburn staff physician and the medical records will suffice, and her testimony would be otherwise redundant. I agree. The request is denied, at this time. As to Paragraph 11, Urine Blood Chemist Charlie is not otherwise identified, and the medical records would appear to suffice. The request is denied.

As to Paragraph 13, Nurse A. Vega, is not mentioned by name in Claim paragraph 16, and this request is denied. As to Paragraph 14, Nurse C. Tremper, is not mentioned by name in Claim paragraphs 17 or 33, and this request is denied. As to Paragraph 15, C.O. Debbie Lamb, is not mentioned by name in Claim paragraph 18, her testimony does not appear material to the claim, and this request is denied.

As to Paragraph 16, seeking Superintendent Hans Walker, Defendant alleges that he did not provide any direct medical care, and that letters written to him, as referenced in Claim paragraphs 20 and 54, do not require his appearance. This request is denied.

As to Paragraphs 17, 18, 19, 20, 21, 22 and 34, seeking Governor Pataki, Assemblyman Saul Weprin, Assemblyman Sheldon Silver, Assemblywoman Gloria Davis, Assemblywoman Merdith Henderson, Assemblyman Dan Feldman and Assembly member Richard N. Gottfried, merely writing to these public officials does not make their prospective testimony relevant, pertinent or material, and these requests are denied.

As to Paragraph 23, Defendant avers that Doctor Maldonato is not an employee of the Defendant, and my review of the cited paragraphs in the Claim do not support the materiality of his purported testimony, and this request is denied. As to Paragraphs 24 and 26 seeking Nurses Lennox and Driscole, respectively, the cited paragraphs do not show that their testimony is material beyond what would be contained in the medical records. These requests are denied.

As to Paragraph 25, Doctor Simon or Simmon, spelled differently in Claim paragraphs 34, 37, 52, 53, 58 and 73, the Defendant is unable to determine whether he is a State employee. Regardless, any of the sought after information would be contained in the medical records. This request is denied. In Paragraph 27 CORC Sylvia Laguna and T. Z. Eagen are sought, but the references to Claim paragraphs 36, 39, and 71 do not show materiality or relevance. This request is denied.

As to Paragraph 28, Physic (sic) Jack Henderson, all references to cited paragraphs in the claim can be supplied by review of the medical records. This request is denied.

The testimony of Physician's Assistant Richard Laux, sought in Paragraph 29, would be redundant of physician testimony. This request is denied. Deputy Commissioner Robert Greifinger, Paragraph 30, is apparently no longer employed by DOCS, and his testimony would be immaterial. The allegation that Claimant wrote to Correctional Counselor Randazzal (Paragraph 31), does not make his prospective testimony relevant.

The request for B. Bingham from the Medical Department (Paragraph 32) is denied as any correspondence from her will be in the medical records, and otherwise she does not appear to offer relevant information. Robert Butera (Paragraph 33) is retired and no longer in the employ of the Defendant. The testimony of the Family Reunion Coordinator, Lynn Anderson (Paragraph 35) does not appear relevant. Dr. Lester Wright (Paragraph 36) may have written to Claimant (Claim Paragraph 58) but his testimony does not appear relevant.

Harold Smith (Paragraph 37) purportedly only rescheduled a grievance hearing (Claim Paragraph 62), and his testimony appears irrelevant. A letter from a Medical Review Board Specialist (Claim paragraph 65), does not warrant the testimony of one Lillian Courchesne (Paragraph 38).

In Paragraph 39, Dr. Michael Spero (or Sapiro, see Claim Paragraphs 68, 71, 73), and Paragraph 40, Doctor Sillin (or Cellin, Claim Paragraph 73) are purported to be physicians who saw Claimant at Upstate Hospital. However, the Defendant asserts, albeit upon information and belief, that these are private physicians and not employees of the Defendant. It would appear that Claimant's medical records will suffice for the purposes sought, without their testimony.

Nurse Melissia Frendik (Paragraph 41), Nurse G. R.? (Paragraph 42), Nurse Judy (Paragraph 44 - Claim Paragraph 48), Nurse Provider No. 801 (Paragraph 45 - Claim Paragraph 64) at best would add nothing to the medical records. Paragraph 46, seeks seven unknown nurses referring to seven different claim paragraphs. The medical records will have to suffice. These requests are denied. Written correspondence to and from the Medical Review Board (Paragraph 43) does not warrant its testimony. Merely because the Claimant allegedly wrote to the United States Attorney General's Office (Paragraph 47 - Claim Paragraph 48), United Insurance Company (Paragraph 48 - Claim Paragraph 53), N.Y.S. Department of Health (Paragraph 49 - Claim Paragraph 54), Inmate Liaison Committee (Paragraph 50 - Claim Paragraphs 10 and 49), or Albany Central Office Staff (Paragraph 51 - Claim Paragraphs 8, 9, and 34), does not warrant any appearances, and as the Defendant notes, these are organizations, not individuals. These are all denied.

In Paragraph 52 Claimant seeks to have Richard P. Burr, Sr. and Mrs. Marilou Anna Burr, whom I believe to be his parents, testify. He does not sufficiently describe the relevance of their prospective testimony in relation to the allegations of the claim. In Paragraphs 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, and 74, Claimant lists doctors, physicians' assistants, physical therapists, correctional counselors and nurses, with specific dates appended to each request, and suggests in Paragraph 53 that each of these individuals were involved in the continuous treatment of the Claimant through June and July of this year. Claimant's medical records should be more than adequate to note his continuing treatment, if any, and, in any event, nothing before me demonstrates the relevance of the prospective testimony of any of these individuals. There is no explanation for the proposed testimony of Commissioner Goord, Commissioner of DOCS (Paragraph 75) or for the testimony of Attorney General Eliot Spitzer (Paragraph 76).

Accordingly, except for the testimony of one of the named physicians at Auburn, the motion is denied in all respects, unless the testimony and evidence at trial warrants additional testimony and an adjournment in the interests of justice.

August 30, 2000
Rochester, New York

Judge of the Court of Claims