New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2003-028-538, Claim No. 105260, Motion No. M-66322


Synopsis


Case Information

UID:
2003-028-538
Claimant(s):
CHESTER DAVIDSON
Claimant short name:
DAVIDSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105260
Motion number(s):
M-66322
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
CHESTER DAVIDSON, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael W. Friedman, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 23, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion for subpoenas duces tecum:
1) Notice of Motion for "Subpoenas Duces Tecum" and supporting affidavit of Chester Davidson, filed January 21, 2003 (Davidson Affidavit[1]).

2) Affirmation in Opposition of Assistant Attorney General Michael W. Friedman,
filed February 13, 2003, with annexed Exhibits A and B (Friedman Opposition).

3) "Reply to Defendant's Opposition" of Chester Davidson, filed February 21, 2003 (Davidson Reply)[2]

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 motion.

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 entirety.

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.


May 23, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] Although denominated an "affirmation" Claimant's submission is an affidavit in proper form and will be referred to as such.
[2] The Court, having previously admonished Claimant on his misuse of affirmations, will ignore the factual assertions, set forth in the Davidson Reply as it is neither an affirmation nor an affidavit.