New York State Court of Claims

New York State Court of Claims

VALLE v. THE STATE OF NEW YORK, #2002-005-548, Claim No. 101829, Motion No. M-65324


Claimant's motion for reconsideration of Motion Nos. M-64605 and M-64868 and M-65008 is denied with respect to witnesses and documents for the trial of this claim; except as to a facility doctor and nurse administrator from whom he may seek to elicit opinion testimony as expert witnesses.

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:
Jaime Valle,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 13, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On July 17, 2002, the following papers, numbered 1 to 8, were read on motion by Claimant for reconsideration of Motion Nos. M-64605, M-64868, M-65008:

Papers Numbered

1, 2 Notice of Motion and Affidavit Annexed
  1. Opposing Papers
3, 4, 5, 6, 7, 8 Filed Papers: Claim, Answer, Decision and Order in Motion No. M-64605, Supplemental Order in Motion No. M-64605, Decision and Order in Motion No. M-64868, Order in Motion No. M-65008

Upon the foregoing papers, this motion is denied in all respects, except to the extent noted.

This is Claimant's motion for reargument and reconsideration of Motion Nos. M-64868, M-64605 and M-65008. First, I will recite the sum and substance of each of these prior motions.

Motion No. M-64605 was the Defendant's motion for an order to compel or preclude responses with respect to certain disclosure demands. The Decision and Order therein was filed on March 26, 2002, and on May 3, 2002, I filed a sua sponte Supplemental Order, both of which may be characterized as conditional orders of preclusion. Those orders speak for themselves.

Motion No. M-65008 was brought by Claimant seeking reconsideration of the original order in Motion No. M-64605, noted above. In an order filed on April 29, 2002, I denied that motion. Since there has previously been a motion for reconsideration of Motion No. M-64605 in Motion No. M-65008, which I denied, and no new or compelling arguments are raised at Claimant's third bite at the apple, I decline to review those orders yet again. The instant motion is denied with respect to those decisions and orders.

By letter from chambers dated April 12, 2002, the trial which had been rescheduled for June 18, 2002, was adjourned sine die to examine the instant motion. Some of the confusion relating to this claim is discussed in my decision and order in Motion No. M-65153, filed contemporaneously with this motion, wherein I have restored Claim No. 102408 to the calendar. Relevant circumstances discussing the confusion about filed pleadings and papers in that claim are recited therein.

Motion No. M-64868 was Claimant's motion for the attendance of witnesses and the production of documents for the trial of this claim; the decision and order was filed on May 3, 2002. With respect to Motion No. M-64868, Claimant seeks to have me revisit the determination not to require the appearance of ‘DSP' Ronald F. Nelson, Sergeant LeOuteourneau, as well as Correction Officers Manser and Volpe, and has attempted to distinguish intentional harassment from the intentional infliction of emotional distress, asserting that emotional distress may or may not be the result of harassment. However, he is not persuasive in demonstrating the relevance of such prospective testimony to a cause of action sounding in the intentional infliction of emotional harm (De Lesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610, and Wheeler v State of New York, 104 AD2d 496), regardless of his unsuccessful attempt to distinguish the cause of action. I adhere to my prior ruling with respect to these individuals.

I similarly adhere to my prior ruling with respect to Captain Gummerson, Sergeant Murphy, Correction Officer (CO) G. Small, CO J. Fasce, "SCC" Robert Butera, CO Robert Mitchell, R.N. George Ray, or R.N. Annie and all other individuals addressed in the decision and order in M-64868, except as specified below.

With respect to R.N. Finch and P.A. R. Laux, I adhere to my earlier decision, declining to permit their testimony for the reasons that follow, in addition to the speculative and redundant nature of their prospective testimonies, as well as the failure to describe the nature of the desired expert opinions. The relevant factual aspects of their purported testimony is readily available in the Claimant's medical records. With respect to Dr. Graceffo, the treating physician at Auburn Correctional Facility (Auburn), Nurse Administrator Coyne, and all these other medically-related employees at Auburn, Claimant urges his entitlement to attempt to elicit their expert opinions, relying upon the decision of Presiding Judge Susan Phillips Read (Loucks v The State of New York, June 4, 2001, UID No. 2001-001-517 []). That case can be said to hold for the proposition that a treating physician who voluntarily testifies (to wit, not under subpoena) is permitted to proffer expert opinions, as CPLR 3101(d) applies to retained experts.

When a claimant seeks witnesses for the purpose of obtaining expert medical testimony, it has been held that "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)" Madison v The State of New York, Sise, J., February 23, 2001, UID No. 2001-028-0519 ( Claimant's request here is the functional equivalent of seeking a subpoena to compel the testimony of the named medical personnel employed by the Defendant at Auburn for the articulated purpose of obtaining expert medical testimony.

Judge Philip J. Patti, in Cadiz v The State of New York, Patti, J., April 29, 2002, UID No. 2002-013-512, (, examining the general rule in New York that an expert witness cannot be compelled to give opinion testimony, noted that where the treating physicians were defendants in a medical malpractice action, the Court of Appeals has held that the patient plaintiff could examine them "as freely and fully as he could any other qualified witness" citing McDermott v Manhattan Eye, Ear & Throat Hosp. (15 NY2d 20). He observed further that physicians who are employed by the malpractice defendant physicians have also been required to provide expert opinion testimony (Hardter v Semel, 197 AD2d 846; Glass v Rochester Gen. Hosp., 74 AD2d 732). Of course in Cadiz, supra, the McDermott holding did not apply because compliance with appropriate medical standards was not at issue in that trial, as the expert testimony sought related to an entirely different element, causation.

Given the specific circumstances and allegations here, I have decided to permit the testimony of Dr. Graceffo and N.A. Coyne, allowing that Claimant may seek to elicit opinion testimony (McDermott v Manhattan Eye, Ear & Throat Hosp., supra; cf., Cadiz v State of New York, supra). Accordingly, the Defendant shall arrange, without the necessity of subpoena, for the appearances of Dr. Graceffo and N.A. Coyne, if they remain employed by the State of New York, at the rescheduled trial of this claim.

With respect to the documents which Claimant has sought, Claimant argues as to their relevance. I similarly reiterate my prior determination. I note however that this does not preclude Claimant from attempting at trial to offer into evidence those documents currently in his possession through discovery or otherwise, as I simply decline requiring the Defendant to produce at the trial those documents as sought in the original motion.

Accordingly, upon reconsideration of my prior orders herein, I adhere to my earlier decisions, including those directions to the Defendant to have copies of specified documents available at trial, except as noted above for Dr. Graceffo and N.A. Coyne.

The motion is hereby denied in all respects except to the extent noted.

November 13, 2002
Rochester, New York

Judge of the Court of Claims