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
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
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.