New York State Court of Claims

New York State Court of Claims

MADISON v. THE STATE OF NEW YORK, #2001-028-0519, Claim No. 96923, Motion No. M-62993


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:
BY: Saul Aronson, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 23, 2001
Albany, New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's motion for the issuance of trial subpoenas and permission to proceed as a poor person:

• abNotice of Motion and Supporting Affidavit of Diallo Rafik Asar Madison, filed January 22, 2001 ( "Madison affidavit").

• abAffirmation in Opposition of Saul Aronson, Esq. AAG, filed January 25, 2001,
("Aronson affirmation").

The motion was noticed for the date of trial and the Court addressed the motion before commencing the trial of this claim.

Claimant seeks permission to proceed as a poor person pursuant to CPLR Article 11 so that he may be "[e]xempt from paying the fee's {sic} to subpoena the requested witnesses..." Madison affidavit, ¶ 4.

CPLR 1101 (c) requires that "[i]f an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable..." This requirement is significant because the payment of the witness fees, and the other privileges of a poor person (see, CPLR 1102), may be a county charge. The failure to comply with this section renders an application defective. Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015, 1016.

Claimant's affidavit of service establishes that the moving papers were only served upon the assistant attorney general and the Court. As such, the claimant has failed to comply with the requirements of the statute, making his application defective. The Court denies the request to proceed as a poor person.

The pro se claimant also seeks judicial subpoenas 1) to compel Dr. Dawson and an unknown oral surgeon[1] to appear as witnesses on his behalf and 2) for the production of dental treatment records, medical records and x-rays. A party who is not an attorney may not issue a subpoena (Chopak v Marcus, 22 AD2d 825) but must apply to a judge or to the clerk of the appropriate court and request that the subpoena(s) be signed (Siegel, Practice Commentaries, [McKinney's Cons Laws of NY, Book 7B, CPLR C2302:1, 2001 Pocket Part, at 56]).

When such an application is made, the court or officer to whom it is made is required to exercise its discretion in determining whether the subpoena should be issued. "If a Judge could not refuse to issue subpoenas – no matter how unreasonable – private citizens could be harassed and litigation could become a judicial nightmare at the hands of well-intended but misled litigants" (Panek v McLaughlin, 110 Misc 2d 1017, 1019; see also 4 Weinstein-Korn-Miller ¶ 2302.03, p 23-14).

Where pro se inmates have requested that subpoenas be issued to secure the attendance of witnesses at trial, courts have inquired into the relevance of the witnesses and their likely testimony and the necessity that the witness testify (see e.g., Johnson v State of New York, Claims No. 95572 & 96053, Motion No. M-61615, dated May 3, 2000, Lebous, J.; Ford v State of New York, Claim No. 96731, Motion No. M-62132, dated August 30, 2000, Corbett, J.) and whether proper use of discovery proceedings would have obviated the need to produce the witnesses at expense to either themselves or, with respect to prison inmates, the State (Sebastiano v State of New York, 112 Misc 2d 1027).

In the instant application, claimant has attached a "Dental Treatment Record" (Madison affidavit, Exhibit 1) which details the treatment provided subsequent to the partial extraction through surgery to remove the root tip. The claimant has not stated any reasons for Dr. Dawson's appearance. The only additional information given to the Court is claimant's averment that the oral surgeon is needed to testify "regarding this injury and the fact that any competent Dentist could've removed the root tip." Madison affidavit, ¶ 2. (emphasis added). Upon the return date of the motion, the Claimant, in response to the Court's inquiry, acknowledged the subpoenas were being sought to obtain expert medical testimony.

Given this information, and the nature of this claim, the Court finds that claimant seeks these witnesses for the purpose of obtaining expert medical testimony. A professional under subpoena may testify as a fact witness but cannot be compelled to give testimony as an expert (58A NY Jur 2d, Evidence & Witnesses, § 752). Thus, it would be an abuse of this Court's discretion to issue the requested witness subpoenas. Consequently, claimant's request is denied.

Lastly, the defendant produced dental x-rays and medical records on the return date which the defendant stipulated would be admitted into evidence. Therefore, claimant's request for a judicial subpoena duces tecum is denied as moot.

February 23, 2001
Albany, New York, New York

Judge of the Court of Claims

Claimant was unable to identify the oral surgeon "Because claimant could not make out the signature of this witness on the records."