Filed Papers: Claim, filed November 26, 2001; Answer filed January 2, 2002.
The instant motion by Claimant was filed within four days of the Court's
disclosure decision involving these parties (see Davidson v State of New
York, Ct Cl, Sise, J., January 17, 2003, Claim No.105620, Motion Nos.
M-65119, M-65265, M-65439, UID #2002-028-074). The facts of the underlying
Claim remain unchanged. Claimant, at all times relevant an inmate, alleges the
Defendant was negligent when it dispensed the wrong prescription medication to
Claimant upon the refill of an existing prescription (Claim, ¶ 7).
Claimant further alleges that he was the subject of retaliatory discipline in
violation of Correction Law §138 for reporting the aforementioned
negligence (Claim, ¶ 8). On this application, Claimant seeks subpoenas
duces tecum for a variety of items including an Investigation Report prepared by
Sergeant Moore, two audiotapes, the identity of a nurse and her professional
credentials, and various pharmacy records. The Defendant opposes the
To begin, the Court has previously denied disclosure of the nurse's file as
irrelevant and not likely to lead to relevant evidence (see Davidson v State
of New York, supra) and Claimant has failed to persuade the Court
otherwise on this application (see Matter of Constantine v Leto, 157 AD2d
376, 378, affd 77 NY2d 975).
The disclosure provisions of the CPLR are to be liberally construed, and it is
well settled that trial courts, because of their obvious familiarity with the
matters at hand, have broad discretionary authority to control discovery and
disclosure and are in the best position "to determine what is 'material and
necessary' as that phrase is used in CPLR 3101 (a)" (NBT Bancorp v
Fleet/Norstar Fin. Group, 192 AD2d 1032, 1033; accord, Jackson v
Dow Chem. Co., 214 AD2d 827, 828; see Saratoga Harness Racing v
Roemer, 274 AD2d 887, 888). A subpoena may not be used for the purpose of
discovery or to ascertain the existence of evidence (Matter of Terry D.,
81 NY2d 1042, 1044). Furthermore, a subpoena duces tecum may not be used as
part of a fishing expedition or to ascertain the existence of evidence (see
Matter of Decrosta v State Police Lab., 182 AD2d 930, 931; Bostic v State
of New York, 232 AD2d 837 lv denied 89 NY2d 807). Nor may it
be used to expand the scope of discovery (see Matter of Terry D.,
supra at 1045; People v Carpenter, 240 AD2d 863, 864, lv denied
90 NY2d 902; Bostic v State of New York, supra at 839).
Accordingly, the Court, at this juncture, denies the instant application in its
The Court will entertain an application for subpoenas when the matter is
scheduled for trial and Claimant will be notified as to the timing of such
application. The Defendant is directed to preserve, to the extent such
materials exist, the items sought by Claimant.
Claimant's motion is hereby DENIED in its entirety.