On September 13, 2000, the following papers, numbered 1 to 4, were read on
motion by Claimant for the production of certain witnesses at the trial herein
on October 5, 2000:
1, 2 Notice of Motion and Affidavit Annexed
3 Letter form Defendant dated September 12, 2000
4 Filed Papers: Claim
Upon the foregoing papers, this motion is denied, except to the extent
The underlying claim herein alleges the Defendant's liability related to a
purported assault by one Sergeant Rodriguez on Claimant at the Auburn
Correctional Facility on or about July 29, 1997 at 12:40 p.m.
Claimant seeks three witnesses to be produced at his trial. He requests
unnamed inmate witness(es) who were present at the time of the incident, and
notes that he sought the name of such inmate(s) in his demand for a Bill of
Particulars, but that the Defendant failed to disclose the same. No motion to
compel such disclosure was ever made, and, mere disclosure of the name(s) of
such inmate(s) does not support this application to produce an unknown and
unnamed inmate at the trial. This request is denied.
Claimant also seeks the production of Sgt. Rodriguez. However, the Defendant
has advised the Court that Sgt. Rodriguez is retired and no longer in the employ
of the State of New York. Accordingly, since the Defendant has no control of
its former employee, and without any means of locating the individual, this
request is also denied.
Claimant seeks the testimony of Correction Officer Levy, whose first name is
not provided or known to Claimant. In his claim, Claimant describes Levy as "an
African-American Auburn CO." However, the Defendant represents that its current
investigation reveals no Correction Officer Levy employed at Auburn Correctional
Facility. The Defendant is directed to continue such search, and if necessary,
to provide testimony with respect to such search. If such correction officer is
located, the Defendant is directed to produce him at the trial, as his testimony
appears to be relevant and material to the claim.
Accordingly, the motion denied, except for the continuing duty to attempt to
locate and produce C. O. Levy.