New York State Court of Claims

New York State Court of Claims

ALI v. THE STATE OF NEW YORK, #2000-013-026, Claim No. 96540, Motion No. M-62002


Claimant's motion for the production of documents and witnesses is granted. State's request for witness fee to produce a Department of Correctional Services employee is 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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: EARL F. GIALANELLA, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 17, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On August 2, 2000, the following papers were read on Claimant's motion for the production of documents and witnesses for trial:
1. Notice of Motion dated July 5, 2000
2. Defendant's Response dated July 27, 2000
3. Claim
4. Answer

Claimant filed this action to recover damages for injuries he says he sustained when he was assaulted by another inmate at the Southport Correctional Facility. His trial is scheduled for September 8, 2000. In this motion, he seeks to have Defendant produce two of its employees for trial: Sergeant Grover and David Goodwin, R.N., II, as well as his medical records. Defendant has no objection to the production of Sergeant Grover and, in fact, has indicated that it intends to call him as a witness at trial. Therefore, Defendant is ordered to produce Sergeant Grover. Defendant has not objected to Claimant's request for his medical records. I am therefore granting Claimant's request for those documents and ordering Defendant to produce them.

Although Defendant has not objected to Claimant's request to call Nurse Goodwin, it has requested that it be paid a $15.00 witness fee to produce him at trial. For the reasons set forth below, I am directing Defendant to produce Nurse Goodwin, but I am denying its request for a witness fee.

There is no statutory authority for directing the payment of a witness fee to the employer of a witness. CPLR 8001, which governs the payment of witness fees, provides in pertinent part that "any person whose attendance is compelled by a subpoena, whether or not actual testimony is taken, shall receive for each day's attendance fifteen dollars for attendance fees..." (CPLR 8001[a] [emphasis added]). Civil Rights Law Section 79, which Defendant cites, is also inapposite. That section provides that Defendant "shall not be required to perform any services related to such action or proceeding... unless and until the Department has received payment for such services." Witness fees, which are paid to the individual witness and not to the witness's employer, are obviously not payment for a service performed by the Department of Correctional Services (DOCS).

Even if I were to construe Defendant's request as one made on Nurse Goodwin's behalf, I would nevertheless deny it. Despite the seemingly mandatory language of CPLR 8001, I have inherent authority to waive the payment of witness fees (see, 14 Weinstein-Korn-Miller, NY Civ Prac ¶ 8001.02). I believe that it is appropriate to exercise that authority here.

I cannot overlook the obvious tactical considerations underlying Defendant's request. Claimant made an application for poor person relief earlier in this case (M-55893 - Decision and Order filed October 6, 1997). Although Judge Hanifin denied that motion, he found Claimant to be indigent. This suggests that Claimant would be effectively prevented from calling Nurse Goodwin at trial if I were to insist upon the payment of a witness fee. Defendant has not indicated that Nurse Goodwin would suffer any inconvenience, loss of wages or expense in connection with his appearance at trial. To the contrary, Defendant's papers reveal that Nurse Goodwin now works at the Elmira Correctional Facility -- the place where this matter will be tried on September 8th.

In the final analysis, waiving the fee will save time for all involved and conserve judicial resources. Judge Hanifin denied Claimant's poor person application because Claimant failed to serve the Chemung County Attorney and because there were no filing fees or costs associated with pursuing a claim in this Court. In rendering his decision, Judge Hanifin obviously assumed, as I routinely do, that all of the relevant witnesses would be DOCS employees and that Defendant would not request that witness fees be tendered for their production at trial. The State's position in the present motion, in my view, reflects a change in circumstances, which would cause me to look favorably upon Claimant's poor person application if he renewed it and properly served it upon the Chemung County Attorney. Waiving the fee will save all involved the expense and time of dealing with a poor person motion on the eve of trial.

August 17, 2000
Rochester, New York

Judge of the Court of Claims