New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK, #2003-030-507, Claim No. 104374, Motion No. M-66190


Synopsis


Pro Se inmate's motion for issuance of subpoenas pursuant to § 2302 CPLR denied.

Case Information

UID:
2003-030-507
Claimant(s):
JAMES ANTHONY CARTER, JR.
Claimant short name:
CARTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104374
Motion number(s):
M-66190
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
JAMES ANTHONY CARTER, JR., PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
January 15, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 4 were read on Claimant's motion for issuance of


a certain trial subpoena brought pursuant to §2302 Civil Practice Law and Rules:

1,2 Notice of Motion, Affidavit in Support by James Anthony Carter, Jr., the Claimant herein, one (1) proposed subpoena, and accompanying exhibit.

3 Affirmation in Opposition by Elyse Angelico, Assistant Attorney General.

4 Filed papers: Claim, Answer.

After carefully considering the papers submitted and the applicable law, the motion is disposed of as follows:

Claimant, an inmate proceeding pro se, alleges in Claim Number 104374 that New York State Department of Correctional Services (hereafter DOCS) employees negligently failed to provide him with adequate and timely medical care while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). He alleges that a Dr. Fagin failed to diagnose and/or properly treat his ailments, ultimately resulting in a loss of hearing. Trial of the matter began on December 17, 2002, and is scheduled to continue on January 30, 2003.

Claimant has brought this motion seeking the issuance of a subpoena to obtain the testimony of audiologist John Serhan, who he states conducted a hearing test on the Claimant on April 4, 2002. In support of his motion, Claimant states that this witness' testimony is "...needed to explain why the E.N.G. in which he conducted on the claimant for dizziness came back abnormal, which came back abnormal December 5, 2002 [I am scheduled to see the audiologist at the next up coming January clinic, I will try then, to obtain a record from him in regard to the E.N.G. in which he performed on the claimant on the 5th day of December, 2002." [Affidavit in Support of James Anthony Carter, Jr., dated December 24, 2002].

Claimant, by the above statement, has not made the requisite showing that this witness is material and necessary to the prosecution of this case. The trial of this matter is ongoing. John Serhan is apparently not a witness under the Defendant's control, albeit he may have conducted an audiological test on Claimant after the accrual of the present claim as a consultant, based upon the exhibit Claimant attaches to this motion, as well as a statement in the Assistant Attorney General's Affirmation, made upon information and belief, that Mr. Serhan is "...a consultant under the Managed Care Program...not under the State's control." [Affirmation in Opposition of Elyse J. Angelico, Assistant Attorney General, dated January 10, 2003, ¶5].

Both Dr. Halko and Dr. Perilli testified at length in this case, and in this court's recollection, interpreted whatever medical records Claimant wanted interpreted.

Finally, if what Claimant is seeking is opinion testimony as to whether the treatment provided Claimant was appropriate and reasonable, a subpoena compelling such testimony is not appropriate. Claimant should understand that an "[e]xpert witness [such as a physician] can be subpoenaed to testify to facts within [his] [own] knowledge and to physical observations, but cannot be compelled to give testimony concerning matters that require the employment of the expert's expertise, education, judgment or opinion in the expert's particular field of expertise." Blake v State of New York, Claim No. 85065, M-61001, Lebous, J., filed March 15, 2000. Eliciting expert opinions at trial requires that Claimant make arrangements with a witness before trial, including negotiation of any expert witness fee.

Accordingly, based upon the failure to adequately establish that his testimony is material and necessary to the prosecution of the present claim, the proposed subpoena directed to John Serhan will not be signed, and Claimant's Motion Number M-66190 is in all respects DENIED.


January 15, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims