New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, #2000-019-521, Claim No. 95981, Motion No. M-61782


Synopsis


Claimant's motion for subpoenas ad testificandum are denied in part and granted in part.

Case Information

UID:
2000-019-521
Claimant(s):
NATHANIEL JACKSON, 86A4227
Claimant short name:
JACKSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95981
Motion number(s):
M-61782
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
NATHANIEL JACKSON, #86-A-4227, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael W. Friedman, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 19, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for the issuance of subpoenas to compel the production of six individuals at trial.


The following papers were considered in connection with this motion:

  1. Claim, filed April 10, 1997.
  2. "NOTICE FOR REQUEST FOR JUDICIAL SUBPOENA CPLR 1201", dated May 23, 2000.
  3. "AFFIDAVIT IN SUPPORT FOR JUDICIAL SUBPOENA CPLR 1201", by Nathaniel Jackson, for G. Rankin, sworn to May 24, 2000.
  4. "AFFIDAVIT IN SUPPORT FOR JUDICIAL SUBPOENA CPLR 1201", by Nathaniel Jackson for D. Vitarius, sworn to May 24, 2000.
  5. "AFFIDAVIT IN SUPPORT FOR JUDICIAL SUBPOENA, CPLR 1201", by Nathaniel Jackson for G. Freer, sworn to May 24, 2000.
  6. "AFFIDAVIT IN SUPPORT FOR JUDICIAL SUBPOENA, CPLR 1201", by Nathaniel Jackson for J. Vitarius, sworn to May 24, 2000.
  7. "AFFIDAVIT IN SUPPORT FOR JUDICIAL SUBPOENA, CPLR 1201", by Nathaniel Jackson for P. McGuire, sworn to May 24, 2000.
  8. "AFFIDAVIT IN SUPPORT FOR JUDICIAL SUBPOENA, CPLR 1201", by Nathaniel Jackson for Anthony Forte, sworn to May 24, 2000.
  9. Letter from Michael W. Friedman, Assistant Attorney General, to Court dated June 6, 2000 and received June 8, 2000.
Claimant, an inmate appearing pro se, slipped and fell in a puddle of water as he was walking in the special housing unit (hereinafter "SHU") gallery while incarcerated at the Shawangunk Correctional Facility (hereinafter "Facility") on April 2, 1997. Claimant asserts that there was a construction defect in the SHU walls such that whenever it rained or snowed the water would seep through the wall and form puddles on the SHU gallery floor. This matter is scheduled for a bifurcated trial on July 12, 2000 at Sullivan Correctional Facility.


The Court notes that the State of New York (hereinafter "State") initially asked for an adjournment of this motion in order "[t]o determine which, if any, of the individuals requested will, in fact, be called by the defendant to testify, thus negating the need for additional subpoenas." (Letter from Michael W. Friedman, AAG, dated June 6, 2000). This Court granted the State's request and adjourned this motion one week from June 7, 2000 to June 14, 2000. Subsequent to the adjourned return date the State advised the Court that it had been unable to investigate this matter any further and could not represent that any of the requested individuals would be voluntarily produced. Accordingly, the Court will address the merits of Claimant's motion.


A. Correction Officer Rankin and Correction Officer D. Vitarius[1]

Claimant represents both these officers were in the process of escorting him and that he was following their verbal orders at the time when this accident occurred. Both officers are also listed as witnesses on the "Report of Inmate Injury". (State's Response to Notice for Discovery and Inspection, Exhibit E). In addition, Claimant asserts both officers are alleged to be aware of the construction defect and related leaking problem. Based on the foregoing, the Court will grant Claimant's request for subpoenas for Correction Officer Rankin and Correction Officer D. Vitarius, subject to the conditions set forth below.


B. Correction Officer Freer

Claimant alleges that Correction Officer Freer is both fully aware of the leaking problem and, more importantly, that:
[w]hile working in SHU [Officer Freer] slipped and fell in a puddle of water on the gallery floor and sustained a broken elbow, which was caused from the construction defect, and the water being able to seep through the wall ending up on the gallery.

(Claimant's Affidavit, ¶ 5). The State does not dispute, at this preliminary stage, the potential relevance of this incident on the issue of notice to this case or, for that matter, that Correction Officer Freer's alleged accident occurred prior to Claimant's accident. Thus, the Court, in its discretion, will grant Claimant's request for a subpoena for Correction Officer Freer, subject to the conditions set forth below.


C. Correction Officer J. Vitarius and Correction Officer McGuire

Claimant describes the relevance of both of these officers in the same manner, namely that they presently work at Shawangunk Correctional Facility during the 3:00 p.m. to 11:00 p.m. shift and are aware of said construction defect and related leaking problem in the SHU walls and floor. It appears Claimant seeks their testimony of the issue of notice resulting from their past observations of leaking problems on any day after it had rained. There is nothing in Claimant's papers indicating that these individuals have any additional information to offer beyond that of Correction Officer Rankin and Correction Officer D. Vitarius. As such, from this record, the Court finds that the testimony of Correction Officer J. Vitarius and Correction Officer McGuire would be repetitive and, as such, Claimant's motion for subpoenas to compel their production at trial is denied.


D. Anthony Forte, M.D.

Claimant seeks a subpoena for Anthony Forte, M.D., the Facility physician who examined and treated Claimant for his injuries resulting from this incident. On a slip and fall case such as this a treating physician is not relevant with respect to a liability determination. The trial scheduled for July 12, 2000 is bifurcated and will only address the issue of liability. Accordingly, Claimant's request for a subpoena for Dr. Forte is denied.


As indicated above, Claimant's motion for subpoenas to produce Correction Officer Rankin, Correction Officer D. Vitarius, and Correction Officer Freer is granted, subject to the following conditions: 1) Claimant must prepare the subpoenas himself and submit them to chambers for signature forthwith after which the Court will return them to Claimant; 2) Claimant must then arrange for service of the subpoenas by either personal service or by certified mail, return receipt requested,[2] at the officers present facilities; and 3) Claimant is responsible for paying each witness a $15.00 witness fee and .23¢ per mile travel expenses calculated on a round-trip basis.[3] (CPLR 2303 [a] & 8001). It is Claimant's responsibility to prepare these subpoenas and arrange for their service prior to trial.


Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion for subpoenas is GRANTED IN PART and DENIED IN PART in accordance with the terms of this Decision and Order.


June 19, 2000
Binghamton, New York

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




[1]
Claimant submitted separate affidavits relative to each requested witness. There are separate requests for one "J. Vitarius" and a "D. Vitarius" so the Court is operating under the assumption that these are indeed two separate officers.
[2]
In light of the short time until the scheduled trial date, the Court finds that service by any other method would be impracticable. (CPLR 308[5]).
[3]
The Court notes that Claimant should not seek relief from payment of these witness fees since 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).