New York State Court of Claims

New York State Court of Claims

MADISON v. THE STATE OF NEW YORK, #2002-005-531, Claim No. 101655, Motion Nos. M-64859, M-64861


Claim is bifurcated, and motion to increase ad damnum is denied without prejudice. Request for witnesses at pro se inmate trial is denied.

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):
M-64859, M-64861
Cross-motion number(s):

Claimant's attorney:
Diallo Rafik Asar Madison,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 19, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On April 17, 2002, the following papers, numbered 1 to 12, were read on motion by Claimant in Motion No. M-64859 for amendment of his claim and in Motion No. M-64861 for the production of documents and witnesses at the trial:
1, 2, 3, 4 Notices of Motion, Affidavits and Exhibits Annexed
  1. Opposing Affirmation
  2. Claimant's Letter dated March 22, 2002
  3. Claimant's Affidavit
  4. Claimant's Objection to Affirmation
  5. Claimant's Letter dated April 5, 2002
  6. Claimant's 2nd Addendum to Subpoena and Objection to Affirmation
11, 12 Filed Papers: Claim, Answer

Upon the foregoing papers, these motions are denied.

In Motion No. M-64859, Claimant seeks to amend his claim to increase the ad damnum from $10,000 to $1,000,000, due to the assertion that Claimant's "mental condition was not known to exist when the original pleading was prepared", and "to plead exempt to Article 16."

The claim herein arises from an assault upon Claimant by a fellow inmate at the Auburn Correctional Facility (Auburn), and alleges negligence by the Defendant's employees in allowing other inmates to secrete weapons, and makes other allegations relating to the staffing and posting of certain correction officers. Claimant now suggests that in addition to the physical injuries he sustained, he has also suffered Post Traumatic Stress Disorder, and as such, he wishes to amend the claim to increase the amount of damages he suffered. This motion is denied, without prejudice, because I am hereby bifurcating the trial of this claim, and only the issue of liability will be addressed at the trial on June 5, 2002, at Auburn Correctional Facility. If Claimant is successful in establishing liability, he may renew his motion with respect to the ad damnum as well as CPLR article 16.

I will now address Motion No. M-64861, in which Claimant requests the presence of certain witnesses. I will address each request independently. Given the bifurcation ordered herein, only those requests pertinent to liability will be addressed directly, and all those related to damages will be denied without prejudice.

Accordingly, as to the request for Bill Slack, a therapist at Fishkill Correctional Facility, whose testimony is sought with respect to Post Traumatic Stress Disorder, and whose testimony therefore is related only to damages, the request is denied at this time, because I have ordered bifurcation of the claim. Claimant's supplemental request for Dr. R .Karri, a psychiatrist at Fishkill, is similarly denied.

Second, the request for the subpoena of Dr. James A. Ciaccio of the Auburn Memorial Hospital is denied as well because his testimony would only appear to address injuries and the issue of damages. Moreover, Dr. Ciaccio does not appear to be an employee of the Defendant, and as such, Claimant would have to prepare the necessary subpoena for the Court to review and issue. Thus, if such becomes relevant after the bifurcated trial on liability, a trial on damages would be conducted, and in advance thereof the mileage and witness fees necessary to accompany each such subpoena would have to be calculated. For Claimant's information, Claimant would be required to properly provide individual subpoena(s) for me to sign, and to pay for each witness the statutory witness attendance fee of $15.00 and travel expenses for the round trip between the witness's address and Auburn Correctional Facility at $.23 per mile (CPLR 8001). The procedure for the issuance and delivery of such subpoenas will be addressed, if necessary, after the trial on liability.

With respect to the Auburn correction officers, Claimant requests three individuals, Sergeant M. Hoey, Captain Gummerson, and an unnamed "wall post officer." Claimant asserts that Captain Gummerson's testimony will be used to show that at the Involuntary Protective Custody (IPC) hearing for Claimant, Captain Gummerson stated that there were many known gang members. The Defendant affirms that it has provided Claimant with a complete, certified copy of the IPC hearing, and impliedly would raise no objection to its introduction into evidence on authenticity grounds. Accordingly, that part of the motion is denied and the Defendant is merely directed to have a copy thereof available at trial, so that no question of authenticity of any submitted copy would remain.

Sergeant M. Hoey, is the correction officer who allegedly reported but did not apparently witness the incident on October 30, 1999, and Claimant asserts that he stated that there were many known gang members circulating in general population against the Defendant's own rules. Defendant acknowledges that it has admitted the veracity of the Involuntary Protective Custody Recommendation authored by Sgt. Hoey, and as contended by the Defendant in opposition to the motion, it is not alleged that Sgt. Hoey can offer any fact testimony regarding the claim. Accordingly, that part of the motion seeking to make Sgt. M. Hoey available to testify at the trial of the claim on June 5, 2002, is denied.

With regard to the unnamed "wall post officer on October 30, 1999 @ Auburn Correctional Facility," the motion is denied. Most significantly, Claimant does not supply, as I have required in making the instant application, "the relevancy, necessity or purpose" of the testimony of such officer, and thus even had the officer been named, this request would have been denied. The Defendant has represented to the Court that it will provide the testimony of a Captain at Auburn, as well as the testimony of a correction officer who was an eye witness to the incident. I will consider at the trial on liability the issue of the unnamed officer and my earlier discovery order, if the same becomes relevant after hearing testimony at trial.

Finally, in the same "Addendum to motion" dated March 19, 2002, in which Claimant sought the testimony of Dr. Ciaccio of Auburn Memorial Hospital, he has also sought the testimony of Assistant Attorney General (AAG) Timothy P. Mulvey, Defendant's counsel herein. Claimant would then have another assistant attorney general assigned for the trial while AAG Mulvey, who has "sworn to all the pleadings in this matter[,] . . . would be held accountable at trial for the sworned (sic) defenses submitted in this matter." While the Defendant may have the burden of proof of certain of the defenses raised, the testimony of the attorney alleging the same does not appear probative or warranted on the vague assertion of accountability raised by Claimant. That aspect of Claimant's motion is denied in all respects.

Thus Motion No. M-64861 is denied in its entirety. Furthermore, in my order dated January 7, 2002 in Motion No. M-64244, I directed Defendant to preserve certain original Polaroid pictures of Claimant's injuries for the trial. Although the trial is now bifurcated, the Defendant is still directed to have the same available for the trial on liability on June 5, 2002, as well as any further proceedings. Similarly, with respect to the videotape of the Auburn main yard, as well as the log books, if any, both addressed in that order, the Defendant shall preserve the same and have them available for the trial on liability should I direct them to be produced.

April 19, 2002
Rochester, New York

Judge of the Court of Claims