4, 5, 6, 7 Filed Papers: Claim; Answer; Decision and Order, and Supplemental
Order in Motion No. M-64605
Upon the foregoing papers this motion is denied except to the extent
In this motion dated March 8, 2002, and filed on March 18, 2002, Claimant
requests an adjournment of my earlier deadline to file a request for witnesses
and documents at his trial herein, originally scheduled for May 1, 2002. While
Claimant's motion is technically late, and he does not present any evidence that
he was stabbed and injured, I will allow that he has made a good faith effort to
comply with my directive, and since the trial has been adjourned to June 18,
2002, I will accept his motion papers and rule upon his requests.
With respect to his request for "DSS" Edward Dann, I am advised that Mr. Dann
is deceased. As to "DSP" Ronald F. Nelson, who Claimant alleges "may" provide
information concerning intentional harassment of Claimant, etc., the request is
denied as it is speculative in nature.
The testimony of Captain Gummerson, who conducted the IPC Hearing of February
3, 1999, is sought because he "may" provide information of intentional
harassment. This request is denied as being speculative. The request for
Sergeant LeOuteourneau, who "may" provide information relative to intentional
harassment in the Law Library, is similarly denied.
The testimony of Sergeant Murphy is sought because he "may" provide information
as to who ordered confiscation of Claimant's legal papers, and is denied as
speculative and because the identity of the individual is a non-issue.
Since Claimant has already been precluded from offering any expert testimony
(see Order and Supplemental Order in Motion No. M-64605) and Claimant has
advised the Court that he will not have any expert witnesses, thus C.O. G. Small
who "may" provide information relative to treatment with steristrips, etc., will
not be directed to testify, inasmuch as the prospective testimony is speculative
and the medical records can reflect the actual treatment Claimant
The request for the testimony of Correction Officers (C.O.) Manser, A. Volpe
and J. Fasce is denied as speculative. The question of a denial of an extra
mattress, confiscation of certain of Claimant's legal materials and medically
issued boots, as such relates to intentional harassment and is denied as such
allegations sound in the intentional infliction of emotional distress, a cause
of action not viable against the State of New York (De Lesline v State of New
York, 91 AD2d 785, lv denied, 58 NY2d 610; Wheeler v State of New
York, 104 AD2d 496). C.O. B. Chuttey is sought because he "may" provide
information concerning the confiscation and possible destruction of said boots.
This request is denied as speculative.
Claimant seeks "SCC" Robert Butera who "may" provide information of an
investigation of a communication sent by other inmates to the administration.
This is speculative and Claimant fails to demonstrate any probative value of
such putative testimony. The testimony of C.O. Robert Mitchell is similarly
denied as speculative and addressing intentional harassment (see De Lesline
v State of New York, supra, and Wheeler v State of New York,
Claimant seeks the testimony of "FHSD" Anthony Graceffo and "N.A." Chris Coyne
who "may" provide information concerning the propriety of treatment of a wound,
etc. This testimony is denied as speculative and, since it addresses the
"propriety" of medical treatment , it would seek opinion testimony. Since
Claimant is precluded from offering expert or opinion testimony, I decline to
direct Dr. Graceffo or Nurse Coyne to testify. The actual treatment received
may be demonstrated from medical records. For the same reasons of
speculativeness and the seeking of opinion testimony, I decline to direct P.A.
R. Laux; R.N. Finch; R.N. George Ray, or R.N. Annie to testify on Claimant's
As to the documents listed in Paragraph 11 of Claimant's motion, the "records"
sought are too vague, the requests too broad, or address intentional harassment,
a non-viable cause of action discussed above, and are denied.
However, I do direct the Defendant to provide at trial any photographs taken of
Claimant's wound at the Auburn hospital on January 30, 1999.
I also direct the Defendant to have a copy of Claimant's ambulatory health
records available at the trial herein.
Accordingly, Claimant's motion is denied in all respects, except as to his
medical records and all photographs of his wound, if any, taken on January 30,