New York State Court of Claims

New York State Court of Claims

CABRERA v. THE STATE OF NEW YORK, #2003-030-531, Claim No. 99993, Motion No. M-66393


Inmate claimant's motion for subpoena and for document production granted in part.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
April 7, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 7 were read on Claimant's motion for the issuance

of a subpoena ad testificandum to Deputy Superintendent of Security at Fishkill Correctional

Facility, R. Ercole:

1,2 Notice of Motion, Affidavit of John A. Cabrera, Claimant, sworn to February 7, 2003

3 Letter to Court from John A .Cabrera dated January 13, 2003 enclosing Freedom of Information Law request dated January 13, 2003

4,5 Letter from Court to Mr. Cabrera dated January 24, 2003; Letter from Court to Mary Kavaney, Assistant Attorney General, dated January 24, 2003

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 requested[1] through FOIL could appropriately be sought through a disclosure request directed to the Attorney General's Office [See, Civil Practice Law and Rules § §3101, 3120], but that this Court could not directly act upon a denied FOIL request.[2] 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 witness.[3] 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 fees. See, 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 Order.

April 7, 2003
White Plains, New York

Judge of the Court of Claims

[1] The Court also noted that the documents concerning a fellow inmate were protected by §96 Public Officers Law, and could not be released without his permission or notice of any application to obtain them.
[2]Indeed, as pointed out to the Claimant, the appropriate vehicle to contest the denial of a FOIL request is an Article 78 proceeding, not maintainable in the Court of Claims. See, §7801 et seq Civil Practice Law and Rules.
[3] Generally, since Claimant is not a person authorized to issue a subpoena, he must seek a Court order allowing the issuance of a subpoena upon proper motion. Chopak v Marcus, 22 AD2d 825, 826 (2d Dept 1964).