New York State Court of Claims

New York State Court of Claims

BARBIERI v. THE STATE OF NEW YORK, #2003-030-545, Claim No. 101702, Motion No. M-66571


Synopsis


Pro se inmate's motion for subpoena directed to fellow inmate denied. Testimony not relevant.

Case Information

UID:
2003-030-545
Claimant(s):
LOUIS BARBIERI
Claimant short name:
BARBIERI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101702
Motion number(s):
M-66571
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
LOUIS BARBIERI, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
May 23, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 6 were read on Claimant's motion for the


issuance of a subpoena ad testificandum pursuant to Civil Practice Law and Rules §2302(b) for


the production of inmate Dan Fullan (DIN# 88-A-0458) currently incarcerated at Green Haven


Correctional Facility:

1 Affidavit in Support of Motion without Notice for Subpoena and Testificandum (sic) by Louis Barbieri, Claimant

2 Affirmation of Jeane L. Strickland Smith, Assistant Attorney General

3 Reply Affidavit of Louis Barbieri

5,6 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 101702, that Defendant's agents wrongfully confiscated and destroyed his personal property while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven). Specifically, he alleges that during a facility-wide search conducted on June 24, 1999 a Correction Officer Hormozy forcibly coerced Claimant into executing an authorization form for the destruction of items wrongfully confiscated, all in violation of departmental directives.

In support of this application, Claimant asserts that the testimony of inmate Dan Fullan "is essential to sustain this cause of action and will better serve the interest of justice....[because Mr. Fullen] personally encountered a similar situation during a cell search where Officer Hormozy [discarded] and destroyed personal property under the direct threat of having the inmate either to approve the destruction of their property or receive a misbehavior report. Said testimony is independently consistent and will support this cause of action. Further, prisoner Fullan will give testimony that he filed a complaint against Office[r] Hormozy, and as a result, the I.G. conducted an investigation of the incident....This testimony would add credence to claimant's allegation because inmate Fullen's (sic) prior complaint filed against Office[r] Hormozy will show that claimant's situation was not an isolated incident, but Officer Hormozy's modus operandi." [Claimant's Affidavit in Support, ¶5-6].

The Assistant Attorney General argues that production of this inmate would implicate confidentiality concerns under Civil Rights Law §50-a, which concerns the exemption from disclosure of personnel records of correction officers. She argues that given the proposed testimony, and the indication that a grievance procedure was filed against Officer Hormozy, it would be an abuse of the confidentiality protections afforded by the statute to produce Mr. Fullan. She also notes that there has been no showing of relevance with respect to the actual facts of the claim as well.

It is with the latter point that this Court agrees. The purpose for which Claimant wants the testimony of Mr. Fullan is simply not material or relevant to the prosecution of what is essentially a bailment claim. An attempt to establish that one of Defendant's agents - Correction Officer Hormozy - was in the habit of coercing inmates generally to execute documents authorizing the destruction of their property by threatening disciplinary proceedings, through the testimony of one other inmate, is entirely collateral to what Claimant must establish in a bailment claim. Moreover, evidence of habit - or routine - is generally not admissible and, as offered here, would constitute improper bolstering as well. See, generally, Coopersmith v Gold, 89 NY2d 957, 959 (1997).[1]

Claimant has not established that the testimony of inmate Dan Fullan is material and necessary to the prosecution of the present claim. Accordingly, Claimant's Motion Number M-66571 is in all respects, DENIED.


May 23, 2003
White Plains, New York

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




[1] In a medical malpractice action alleging defendant had engaged in a sexual relationship with plaintiff during the course of their psychiatrist-patient relationship, testimony by four former patients of defendant who claimed to have been involved in sexual relationships with defendant during the course of treatment was precluded before trial under the general precept that "evidence of prior, similar acts is inadmissible to prove that defendant perpetrated the same act on a later, unrelated occasion... (citations omitted)." A second application to introduce the testimony in rebuttal was also denied, as collateral and as improper bolstering of plaintiff's testimony.