New York State Court of Claims

New York State Court of Claims

HODGE v. THE STATE OF NEW YORK, #2000-019-516, Claim No. 96265 & 99031, Motion No. M-61622


Synopsis


Claimant seeks the issuance of subpoenas to compel the production of four individuals at the trial scheduled for June 13, 2000 at the Sullivan Correctional Facility.

Case Information

UID:
2000-019-516
Claimant(s):
MARTIN HODGE
Claimant short name:
HODGE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96265 & 99031
Motion number(s):
M-61622
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MARTIN HODGE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: DENNIS M. ACTON, Assistant Attorney General of counsel
Third-party defendant's attorney:

Signature date:
May 17, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks the issuance of subpoenas to compel the production of five individuals at his trial scheduled for June 13, 2000 at the Sullivan Correctional Facility.[1] The State of New York (hereinafter "State") objects to this motion on both procedural and substantive grounds.


The Court has considered the following papers in connection with this motion:
  1. Claim No. 96265, filed May 22, 1997.
  2. Claim No. 99031, filed September 24, 1998.
  3. DECISION AND ORDER, Lebous, J., Claim No. 96265, Motion No. M-61149, filed April 5, 2000.
  4. ORDER, Lebous J., Claim No. 96265, Motion No. M-59581, filed August 13, 1999.
  5. Letter from Martin Hodge to Court, Motion No. M-61622, dated April 12, 2000 and received April 18, 2000.
  6. Letter from Dennis M. Action, AAG, to the Court, dated April 27, 2000 and received May 1, 2000.
  7. Letter from Martin Hodge to Court dated May 2, 2000 and received May 5, 2000.
  8. Letter from Court to Martin Hodge and Dennis M. Acton, AAG, dated May 5, 2000.
  9. Affidavit of Dennis M. Acton, AAG, in opposition to motion, sworn to May 10, 2000 and filed May 12, 2000.
Initially, the State objects to Claimant's motion on various procedural grounds. The Court finds the State's procedural arguments without merit. More specifically, the State has not demonstrated how it has suffered any prejudice by this Court's decision to treat Claimant's letter application as a motion. With respect to the State's request for bifurcation of these trials, these trials scheduled for June 13, 2000 are bifurcated and will be solely on the issue of liability in accordance with this Court's prior Decision and Order. (Hodge v State of New York, Ct Cl., April 5, 2000, Lebous J., Claim No. 96265, Motion No. M-61149). Claimant also raises two procedural issues. First, Claimant was previously advised that no further discovery motions would be entertained after March 31, 2000 and, as such, Claimant's complaint that certain portions of discovery documents were redacted will not be addressed. (Hodge v State of New York, Ct Cl., August 13, 1999, Lebous J., Claim No. 96265, Motion No. M-59581). Furthermore, Claimant requests that his transfer to Sullivan Correctional Facility for trial be limited to the same day. In this Court's view, such matters are better left to the discretion of the New York State Department of Correctional Services (hereinafter "DOCS") and this Court will not interfere with such security matters.

Turning now to the substance of this motion, Claimant has requested subpoenas to produce the following individuals at trial:
1) Mr. Wilhelm, Deputy Commissioner of the New York State Correctional Services;
2) Paul Annetts, Deputy Superintendent of Security at Shawangunk Correctional Facility;
3) Dr. Valencia, Claimant's treating psychiatrist at Coxsackie Correctional Facility;
4) J. Quartarone, R.N., of Shawangunk Correctional Facility; and
5) Mr. Pursino, Correctional Officer at Green Haven Correctional Facility.

1). Mr. Wilhelm
Claimant seeks a subpoena for Mr. Wilhelm, the Assistant Commissioner for DOCS. Claimant asserts Mr. Wilhelm would testify to "[p]rocedures in transferring an inmate, and the procedures in separating inmates that are enemies...[and] his personal knowledge of claimants enemy problem, and need for proper placement, as well as Mr. Wilhelms [sic] personal knowledge of claimant and professional involvement to claimant." (Claimant's letter dated May 2, 2000). The State objects on grounds of relevance. The Court agrees. Claimant has offered nothing but conclusory allegations that Mr. Wilhelm possesses relevant information regarding these claims. Moreover, with respect to the testimony on relevant procedures, Claimant may seek to introduce such evidence by other means.

2). Paul Annetts
Claimant next seeks a subpoena to produce Paul Annetts, the Deputy Superintendent of Security of Shawangunk Correctional Facility. The State again objects on the grounds of relevancy. However, Claimant's allegation that Mr. Annetts had a personal "role in Claimant's transfer from Shawangunk Correctional to Coxsackie Correctional" which is the subject of one of these claims is undisputed by the State. Moreover, Mr. Annetts may also be able to testify regarding the relevant DOCS procedures. As such, the Court will grant Claimant's request for a subpoena for Mr. Annetts, subject to the conditions set forth below.
3). Nurse Quartarone
Claimant requests a subpoena for Nurse Quartarone of the Shawangunk Correctional Facility so she can testify "[a]bout claimants medical treatment, and medical procedures, and the procedures in sick call at the Shawangunk Correctional Facility. As well as her personal and professional knowledge of the different problems that claimant had at the Shawangunk facility concerning medical." (Claimant's letter dated May 2, 2000). The State objects on the grounds that Claimant has failed to specify which party Nurse Quartarone's testimony will favor, as well as on the issue of relevancy. In light of the fact that one of these claims addresses sick call procedure (Claim No. 99031) it would appear that Nurse Quartarone may well have relevant testimony to offer at trial. As such, the Court will grant Claimant's request for a subpoena for Nurse Quartarone, subject to the conditions set forth below.

4). Dr. Valencia
Claimant also requests a subpoena for Dr. Valencia identified as his "treating psychiatrist, of Coxsackie Correctional Facility. Last known office of employment for the Department of Correctional Services, was Eastern Correctional Facility, Napanoch New York." (Claimant's letter dated April 12, 2000). The State does not dispute the Claimant's representation that Dr. Valencia was, at some point, his treating psychiatrist, but rather asserts his relevance, if any, is related to damages. The Court agrees. Inasmuch as the Court has ordered the bifurcation of these trials, Claimant's request for a subpoena for Dr. Valencia is denied without prejudice to renewal in the event a damages trial is warranted.

5). Mr. Pursino
Finally, Claimant requests a subpoena for Mr. Pursino whom he alleges is a correctional officer at the Green Haven Correctional Facility, but was formerly the assistant inspector general who personally investigated Claimant's transfers. Claimant states that Mr. Pusino's testimony will be relevant because he:
[i]nvestigated claimant, while claimant was at the Coxsackie Correctional Facility. And why claimant was put together with a known enemy. Mr. Pursino is expected to give testimony as to his personal knowledge, and involvement in his investigation in why claimant was put together with a known enemy. And what reports Mr. Pursino wrote, and what actions Mr. Pursino took to separate claimant from the dangers claimant faced.

(Claimant's letter dated May 2, 2000).

The State objects on the grounds that Claimant has made "[n]o showing that Mr. Pursino would have firsthand knowledge with regard to the truth of the allegation contained in Claim No. 96265...." (State's Affidavit in Opposition, ¶ 11). In this Court's view, the State has not adequately disputed Claimant's assertion that Mr. Pursino personally investigated this matter. Consequently, the Court will grant Claimant's request for a subpoena for Mr. Pursino, subject to the conditions set forth below.

Claimant's motion for subpoenas to produce Mr. Annetts, Nurse Quartarone, and Mr. Pursino at trial are granted, subject to the following conditions: 1) Claimant must prepare the subpoenas and submit them to chambers for signature forthwith after which the Court will return them to Claimant; 2) Claimant must then arrange for proper service of the subpoenas in the same manner as a summons (CPLR 2303 [a]); and 3) Claimant is responsible for paying each witness a $15.00 witness fee and .23¢ per mile travel expenses which must be tendered in advance of trial (CPLR 2303 [a] & 8001).[2]
Accordingly, for the reasons stated above, it is ORDERED that Claimant's application for subpoenas is GRANTED IN PART and DENIED IN PART in accordance with the terms of this Decision and Order.

May 17, 2000
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]The Court is treating Claimant's letter application as a motion.
[2]Claimant is responsible for witness fees for subpoenaed witnesses. For instance, even in cases in which poor person status has been granted, which is not the case here, a waiver of such fees is not authorized in CPLR 1102. (Christian v State of New York, Ct Cl., Benza, J., Claim No. 93478, Motion No. M-57797).