New York State Court of Claims

New York State Court of Claims

BURKE v. THE STATE OF NEW YORK, #2002-031-049, Claim No. 100078, Motion No. M-65856


Synopsis


Claimant's motion to compel Defendant to produce witnesses for trial is granted in part and denied in part, with no subpoenas to be issued.

Case Information

UID:
2002-031-049
Claimant(s):
PATRICK T. BURKE
Claimant short name:
BURKE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100078
Motion number(s):
M-65856
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
PATRICK T. BURKE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 8, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Claimant for an order compelling Defendant to produce certain witnesses at the trial of this matter:
1. Notice of Motion, filed September 26, 2002;
2. Affidavit of Patrick T. Burke, sworn to September 19, 2002;
3. Affidavit of William D. Lonergan, Esq., sworn to October 4, 2002;
  1. Filed documents: Claim, Answer, and Claimant's Response to Defendant's Notice for Discovery and Inspection. With this motion, Claimant Patrick Burke requests that the Court issue subpoenas compelling Defendant to produce certain witnesses at the trial of this matter, which is scheduled for October 22, 2002. In his underlying claim filed March 30, 1999, Claimant alleges that on January 26, 1999, correction officers at Gowanda Correctional Facility negligently packed and secured his personal property resulting in the loss of property valued at $349.56. In this motion, Claimant asserts that the testimony of Correction Officers Nissler and Trotter are necessary as they were responsible for packing Claimant's property on January 26, 1999. He asserts that the testimony of inmate Christopher Boulware (96-R-8797) is necessary as this inmate was present when Claimant's property was returned to him and can testify that the property Claimant received was misidentified and actually belonged to a different inmate.
Defendant opposes Claimant's motion, arguing that production of these witnesses is unwarranted and will be unduly burdensome for Defendant, given the nature of the claim.

A review of the pleadings and discovery responses in this matter indicates that Claimant has never before alleged that the property he received was not his own. Indeed, the claim states only that, when his property was returned to him, portions were missing. Additionally, in his response to Defendant's demand for identification of witnesses, Claimant named only Correction Officer Trotter. As Officer Trotter was identified by Claimant as the officer responsible for packing up Claimant's property, I find that his testimony is relevant to Claimant's case. I direct the Defendant to have him available to testify at the trial without the necessity of a subpoena, and the Claimant's motion is granted to that limited extent.

With regard to the other requested witnesses, it appears that inmate Boulware would, at best, bolster Claimant's testimony that he received another inmate's property and that Claimant's property was lost. Though even this is doubtful, as there has been no showing that inmate Boulware was familiar enough with Claimant's property to identify what was his and what was not. Additionally, because neither inmate Boulware, nor Correction Officer Nissler were identified as witnesses in Claimant's discovery responses, permitting their testimony at this point would unduly prejudice the defense of this matter.

Based on the foregoing, it is;

ORDERED, that Claimant's motion is granted in part and Defendant is directed to produce at the trial of this matter, Correction Officer Trotter, without the necessity of a subpoena; and it is further

ORDERED, all other relief requested in Claimant's motion is denied.

October 8, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims