New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2001-028-0545, Claim No. 100754, Motion No. M-63756


Synopsis



Case Information

UID:
2001-028-0545
Claimant(s):
RICKEY MOORE
Claimant short name:
MOORE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100754
Motion number(s):
M-63756
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
RICKEY MOORE, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Belinda A. Wagner, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 1, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on claimant's motion for the issuance of trial subpoenas and document production:


• ab Notice of Motion and Supporting Affirmation of Rickey Moore, filed July 12, 2001 (Moore Affirmation).

• abAffirmation in Opposition of Assistant Attorney General Belinda A. Wagner, filed July 23, 2001, (Wagner affirmation) with annexed Exhibit A.


Filed Papers: Claim, filed July 20, 1999, Verified Answer, September 1, 1999.

This Claim arises from the alleged wrongful refusal to permit Claimant's daughter to attend a religious event with Claimant while he was incarcerated at the Coxsackie Correctional Facility (Coxsackie). The matter was set down for trial and the Court directed that any application for the appearance of witnesses and/or production of documents be made on or before July 25, 2001.

The instant application ensued by which the pro se claimant seeks 1) judicial subpoenas to compel Candice Moore, his daughter, and Imam Hameed A Zakee, Coxsackie Islamic Chaplin to appear as a witnesses on his behalf and 2) an Order directing the production of a) grievance complaints (No.CX-6503-99) on file regarding January 23, 1999; b) visitor record ledger and Claimant's approved visitors for January 23, 1999; c) rules, policies and directives (4403) concerning approval of guests, etc., and d) all memos from C.B.Capuano to claimant dated 2/11/99.

Contrary to the Court's specific direction, the request for witness subpoenas is unaccompanied by any indication of the specific testimony of the individuals or its relevance to the claim. The Defendant opposes the application and states that it is willing to stipulate "that Joann Moore, Patricia Moore, Candice Moore, Natasha Nachata, Britteny Moore and Devante Moore were all on the guest list for the festival." (Wagner Affirmation, ¶4). Given the circumstances of this Claim, and Claimant's silence, the Court cannot discern what relevant testimony Imam Zakee would offer at trial. Accordingly, the Court denies the request to order the production of said individual.

Since Claimant is not an attorney and his daughter is not within the control of The Department of Correctional Services, Claimant requires a judicial subpoena to compel her attendance (see, Chopak v Marcus, 22 AD2d 825; Siegel, Practice Commentaries, McKinney's Consol. Laws of NY, CPLR 2302, C2302:1). 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. Initially, the Court fails to see the need for a subpoena for a presumably friendly witness, particularly where, as here, there has been no representation the daughter would not appear voluntarily. With the stipulation that the daughter was on the guest list and the facility's acknowledgment that the daughter was denied entry (see, Wagner Affirmation, Exhibit A) in the Court's view, any relevant testimony the daughter might provide would be cumulative. Finally, the proposed witness is a minor who the Court would not compel to appear without first hearing from the legal custodian of the child. For these reasons, the Court exercises its discretion and declines the request for a subpoena for Claimant's daughter.

In view of Defendant's acknowledgment that documents have been previously provided and that Defendant has provided additional documents (sought on this application) with its opposition papers, the Court finds no need to order the documents produced. In reaching this result, the Court reminds the Defendant that Claimant would otherwise be entitled to a subpoena for production of certified copies of records at trial ( see, CPLR §§ 2306 and 2307).

Accordingly, Claimant's motion is denied in its entirety.











August 1, 2001
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims