New York State Court of Claims

New York State Court of Claims

NOWLIN v.THE STATE OF NEW YORK, #2000-019-517, Claim No. 98308, Motion No. M-61637


Synopsis


Claimant moves for the issuance of a subpoena ad testificandum to produce a dentist at his trial. DENIED.

Case Information

UID:
2000-019-517
Claimant(s):
KENNETH NOWLIN
Claimant short name:
NOWLIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98308
Motion number(s):
M-61637
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
KENNETH NOWLIN, 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 16, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for the issuance of a subpoena ad testificandum to produce one Martin Kaufman,[1] D.D.S. at his trial scheduled for June14, 2000 at the Sullivan Correctional Facility.


The following papers were considered by the Court in connection with this motion:
  1. Claim, filed May 11, 1998.
  2. "NOTICE OF PROPOSED MOTION TO SUBPOENA WITNESS TESTIMONY (NY CPLR 2302)", Motion No. M-61637, dated April 27, 2000 and filed May 2, 2000.
  3. "PROPOSED MOTION TO SUBPOENA WITNESS TESTIMONY PURSUANT TO SECTION 2302 (b) OF THE NY CPLR", of Kenneth Nowlin, sworn to April 27, 1999.
  4. "NOTICE OF MOTION FOR ORDER TO SUBPOENA WITNESS TESTIMONY (NY CPLR 2302)", dated April 27, 2000.
  5. "MOTION AFFIDAVIT TO SUBPOENA WITNESS TESTIMONY PURSUANT TO SECTION 2302 (B) OF THE NY CPLR", of Kenneth Nowlin, sworn to April 27, 2000, with attachments.
  6. Affidavit of Dennis M. Acton, AAG, in opposition to motion, sworn to May 4, 2000 and filed May 8, 2000.
  7. Letter from Kenneth Nowlin to the Chief Clerk, dated May 8, 2000 and received May 11, 2000.
Claimant alleges dental malpractice on the part of the State of New York (hereinafter "State") by an unidentified staff dentist while he was incarcerated at Wallkill Correctional Facility. According to this Claim, the alleged malpractice arises from a lack of informed consent and needless extraction of two of Claimant's teeth resulting in his life long reliance on a full upper denture, as well as a cut on his upper lip during the extraction procedure that caused him to suffer speech dysfunction and loss of sensation in his lip.


Claimant requests a subpoena ad testificandum compelling the appearance and testimony of Martin Kaufman, D.D.S., the Regional Dental Director for the State Department of Corrections in the Fishkill Correctional Facility. Claimant avers Dr. Kaufman's testimony is important because:
Dr. Kaufman's presence and testimony is sought in the dual capacity of both ordinary and expert witness...in that he can testify to pre operative requirements as well as post operative occurances [sic] respective of his September 5, 1997 examination of and conversation with claimant regarding the condition of his gum ridge, poor fit of the issued full upper denture and to the acceptable standards of care prevailing in the dental Industry, viewed through claimant's dental needs and treatment actually given.

(Motion Affidavit of Kenneth Nowlin, ¶ 4; emphasis added).


The State opposes the application because "[i]t is apparent that claimant's intention is to use Dr. Korfman as an expert rather than a fact witness." (Affidavit of Dennis M. Acton, AAG, ¶ 5). The Court agrees. It is well-settled that a witness "[c]annot be compelled to give testimony concerning matters that require employment of the expert's expertise, education, judgment or opinion in the expert's particular field of expertise." (58 NY Jur 2d, Evidence & Witnesses, § 754). Claimant's own affidavit demonstrates his intention to use Dr. Kaufman solely as an expert witness by referencing the need for Dr. Kaufman's opinion on such post-treatment issues as the condition of his gums, the poor fit of the dentures, and the acceptable standards of care. Moreover, there is no allegation that Dr. Kaufman ever actually treated Claimant other than an examination performed in response to litigation. (Claim, ¶ 25).


Accordingly, for the reasons stated above, it is ordered that Claimant's motion, Motion No. M-61637, is DENIED.


May 16, 2000
Binghamton, New York

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




[1]Claimant's motion papers use the spelling "Korfman", while the Claim uses "Kaufman"; for purposes of consistency the Court will use Kaufman.