New York State Court of Claims

New York State Court of Claims

JOHNSON v. New York, #2000-019-515, Claim No. 95572 & 96053, Motion No. M-61615


Claimant seeks the issuance of subpoenas to compel the production of numerous individuals at trial. Motion denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95572 & 96053
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: MICHAEL FRIEDMAN, Assistant Attorney General of counsel
Third-party defendant's attorney:

Signature date:
May 3, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks the issuance of subpoenas to compel the production of numerous individuals at trial.[1]

The Court has considered the following papers in connection with this motion:
  1. Claim No. 95572, filed February 3, 1997.
  2. Supplemental Claim No. 95572, filed April 2, 1997.
  3. Claim No. 96053, filed April 22, 1997.
  4. Letter to the Court from Lawrence Johnson, dated April 17, 2000 and received April 28, 2000.
  5. "CLAIMANTS [sic] STATEMENT", with attachments.

This matter is scheduled for trial on May 10, 2000 at the Sullivan Correctional Facility. Claimant's letter application dated April 17, 2000 was received by the Court on April 28, 2000. Claimant submits a document entitled "Claimants Statement" wherein he seeks subpoenas for seven individuals plus the production of the weight machine involved in his accident, together with four actual subpoenas relating to, for the most part, five inmate witnesses.

Claimant requests a subpoena ad testificandum be issued to Helm Distributing, Inc. in Poison, Montana. Claimant's Statement indicates that this company was the distributor of the weight machine which allegedly caused Claimant's injury. First, the Court does not have subpoena power over persons or entities located outside this state. Secondly, there is no showing that the distributor of this machine is of any relevance to this matter. The request for a subpoena ad testificandum of Helm Distributing, Inc. is denied.

Next, Claimant requests the production of the actual "Disability Universal Machine" that is the subject of this dispute. From various photographs in this record, it is fair to describe this machine as large and heavy. Moreover, there is no showing that this weight machine is still in the same condition it was on the date of Claimant's accident over three years ago. In the Court's view, there is no reason why the photographs of the machine, taken shortly after the incident, all of which were produced during pretrial discovery, cannot be used in place of the machine. The request for a subpoena for the production of the Disability Universal Machine is denied.

To the extent that the subpoena for the weight machine could be construed as a subpoena duces tecum for the State to produce at trial "information concerning the incident of Jan, [sic] 27, 1997 in the Disability Recreation Area at Shawangunk Correctional Facility", the State has advised the Court that it will voluntarily produce such documentation at trial.

Claimant also seeks subpoenas for Carl Mabry, a Recreation Program Leader I at Shawangunk Correctional Facility, and Brian Fox, a Fire & Safety Officer at the same facility. The State has advised the Court that it will voluntarily produce Mr. Mabry and Mr. Fox at trial.

Claimant also request subpoenas for a Sergeant Duffany and Correction Officer Formichelli. There is nothing in Claimant's Statement indicating the relevance these individuals have to this matter. In addition, the Court searched the record, but was unable to locate sufficient information warranting the issuance of subpoenas to these individuals. With respect to John Tumminia, a Recreation Program Leader II, the State has already agreed to produce Mr. Mabry who is a Recreation Program Leader I. Claimant's request for subpoenas for Sergeant Duffany, Correction Officer Formichelli, and John Tumminia is denied.

Claimant next seeks subpoenas to produce "Medical Physician Dichario" and Ray Glen, both of whom Claimant believes to be doctors at St. Luke's Hospital.[2] Claimant indicates he seeks Ray Glen to testify to Claimant's "admittance and treatment". While such testimony might be relevant in a damages phase, if applicable, it is not relevant to the liability phase of this trial. With respect to "Medical Physician Dichario", Claimant indicates he will testify to his observation that the correction officers had food in the emergency room. Assuming, arguendo, that "Medical Physician Dichario" would testify to this fact, Claimant does not assert Mr. Dichario would testify he actually observed the officers stopping and purchasing food or that any such delay aggravated Claimant's injury. Accordingly, the Court, in its discretion, denies Claimant's request for subpoenas of "Medical Physician Dichario" and Ray Glen.

Finally, Claimant seeks subpoenas to produce five inmate witnesses, namely Peter Grassia, Albert Bell, Carlos Carrion, Herminio Espinal, and Lewis Quimberly. It is well-settled that a party seeking the production of an inmate witness must demonstrate that the testimony of the inmate witness is material and necessary. (Sebastiano v State of New York, 112 Misc 2d 1027). Claimant has made absolutely no attempt to demonstrate how Carlos Carrion, Herminio Espinal, or Lewis Quimberly are material and necessary to the matter at hand. With respect to Peter Grassia and Albert Bell, the record reveals that during discovery the State produced incident reports which indicated that these two inmates were injured while using this same disability universal machine.[3] The Claim itself includes allegations that the prior Bell and Grassia accidents were similar in nature to Claimant's accident. However, Claimant has had approximately three years since his claims were filed to obtain statements from these inmates which could have detailed the nature of their accidents and from which this Court may have concluded that their testimony would be material and necessary on the issue of prior notice of the alleged defect.[4] Without this additional information, the Court only has Claimant's assertion that the accidents were similar in nature and the Department of Correctional Services internal incident reports which were ambiguous at best. Moreover, with respect to Inmate Grassia, there is an investigative report from Mr. Fox indicating he found nothing wrong with the machine in question. In sum, in this Court's view, the mere showing of a prior accident is not sufficient to sustain Claimant's burden of demonstrating that any of these inmate witnesses are material and necessary. As such, Claimant's request for subpoenas for the five inmate witnesses is denied.

Accordingly, for the reasons stated above, it is ORDERED that Claimant's request for subpoenas is DENIED.

May 3, 2000
Binghamton, New York

Judge of the Court of Claims

[1]The Court is treating Claimant's letter application as a motion.
[2]It appears from discovery that Mr. Dichario may be a physician's assistant and not a medical doctor.
[3]Inmate Grassia's accident occurred on February 10, 1994 and Inmate Bell's accident occurred on October 2, 1996, whereas Claimant's accident occurred on January 27, 1997.
[4]Furthermore, the Court notes that by letter dated October 8, 1998, Claimant advised the Clerk of the Court that he had completed discovery and was ready to proceed to trial.