6,7 Filed Papers: Claim, Answer
John Cabrera, the Claimant herein, alleges in Claim Number 99993 that
defendant's agents allowed a dangerous condition to exist at the shower area of
Fishkill Correctional Facility (hereafter Fishkill) causing Claimant to fall and
suffer injury. This claim was scheduled to proceed to trial at Fishkill on
February 21, 2003.
On that date, the Claimant indicated he had made a motion asking that a
subpoena be issued directing Deputy Superintendent Ercole to appear and testify
that had not been determined. He orally renewed his request, and expanded upon
the reasons contained in his moving papers, indicating that Deputy Ercole was
the individual who had investigated the site of the Claimant's alleged accident.
Certainly a review of the Claim supports that contention.
The Assistant Attorney General - who acknowledged that that office had received
the Claimant's motion - indicated he had not discussed the matter with Deputy
Ercole and thus could not address the Claimant's contentions. He indicated he
would respond after he had spoken with Deputy Ercole.
Claimant also indicated that he had sent a Freedom of Information Law
(hereafter FOIL) request for certain documents pertinent to his Claim to the
Inmate Records Coordinator on or about January 13, 2003, and had not yet
received a response. It is noted that the Claimant wrote to this Court on the
same date asking for its assistance in obtaining the requested documents. The
requested items included copies of photographs of Claimant taken by defendant's
agents on January 4, 1999, copies of a facility operations manual concerning
shower procedures in 1997-1999, and copies of grievance procedures filed by
another inmate concerning a fall in the same location.
In response, the Court had advised Claimant that some of the documents
through FOIL could appropriately be
sought through a disclosure request directed to the Attorney General's Office
, Civil Practice Law and Rules § §3101, 3120], but that
this Court could not directly act upon a denied FOIL
In order to avoid unnecessary motion
practice, the Court had then written to the Assistant Attorney General assigned
to the Claim enclosing the FOIL request and asking her to assist Claimant in
obtaining the appropriately requested documents. No response was received from
the Attorney General's office.
In any event, Claimant indicated that he could not proceed without the witness
he had requested or the documents. The Assistant Attorney General who appeared
on the scheduled trial date - not the same individual the Court had written to -
was unfamiliar, as noted, with both the witness request and the document
request, but indicated he would respond to the requests.
Accordingly, the Court adjourned the trial, anticipating that there would be
some clarification of the Claimant's requests. At this juncture, no response has
been received from the Attorney General's office, nor does it appear that there
has been any further motion practice on Claimant's part. Thus, the motion for
the issuance of a subpoena and the oral application for disclosure are disposed
of as follows:
The Court is satisfied, based upon the Claimant's affidavit, a review of the
filed claim, and his additional statements made on February 21, 2003, that the
testimony of Deputy Superintendent R. Ercole is material and necessary to the
prosecution of his claim. See, Civil Practice Law and Rules §3101.
There has been no indication that Deputy Ercole is no longer in the employ of
the New York State Department of Correctional Services (hereafter DOCS) and,
accordingly, he is still under the control of Defendant for purposes of
obtaining his trial testimony.
Claimant has made an unopposed motion for the issuance of a subpoena directing
Deputy Ercole to appear and testify as Claimant's
Civil Practice Law and Rules
§2302(a) and (b). This Court usually requires that the proposed subpoena
be included with the motion papers, however, given that the individual whose
testimony is requested is a DOCS employee at the same location where trial is
venued this omission will be overlooked. In lieu of further motion practice,
the Defendant is hereby directed to produce the requested witness. If Deputy
Ercole has been reassigned, the Assistant Attorney General is directed to
ascertain his current assignment in order that statutory travel expenses may be
calculated. Such information shall be communicated, in writing, to Claimant
with a copy to the Court within thirty (30) days of the filing date of this
Order. Claimant shall be responsible for statutory travel expenses and witness
Civil Practice Law and Rules §8001(a) .
With respect to the document request, and again in lieu of a formal motion with
respect to the clearly discoverable materials, counsel for the Defendant is
directed to ascertain the cost of reproduction of the requested photographs (if
any exist) and the facility operations manual for the period 1997 through 1999,
communicate such cost in writing to Claimant with a copy to the Court within
thirty (30) days of the filing date of this Order, and, upon receipt of monies
from Claimant paying for the cost of reproduction, Defendant is directed to send
the copies to Claimant within twenty (20) days of receipt of payment.
If Claimant wants copies of documents concerning an inmate other than himself,
to wit: the grievance documents of inmate Mike Stone (97-R-8038) concerning Mr.
Stone's grievance of on or about November 5, 1998, Claimant is directed to make
a formal motion on notice to Mr. Stone and the Attorney General's Office as he
had been told to do by this Court's letter of January 24, 2003. Such motion, if
any, should be made within thirty (30) days of the filing date of this