New York State Court of Claims

New York State Court of Claims

STEELE v. THE STATE OF NEW YORK, #2003-030-566, Claim No. 102897, Motion No. M-66997


Motion for subpoenas 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:
August 15, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read on Claimant's motion for the issuance

of several trial witness subpoenas directed to New York State Department of Correctional

Services (hereafter DOCS) employees:

1,2 Notice of Motion, Affidavit of William Steele, Claimant, sworn to June 18, 2003

3 Letter to Court from Dewey Lee, Assistant Attorney General, dated July 1, 2003

4,5 Filed Papers: Claim, Answer

William Steele, the Claimant herein, alleges in Claim Number 102897 that Defendant's agents failed to protect him from an assault by fellow inmates at Green Haven Correctional Facility (hereafter Green Haven) by their failure to follow institutional procedures and policies.

Specifically, in his claim he states that on September 3, 1998, at approximately 1:00 p.m. Claimant stepped out of his cell, turned, saw an inmate "who did not lock on Claimant's locking company," who then stabbed claimant twice in the chest with some type of weapon. [See, Claim No. 102897, ¶6]. He alleges that Correction Officers Kennedy and Urciuoli were responsible for "five company" - the company Claimant locked on - on that date, and had been working on that company for 2 ½ years. [Id]. He asserts that allowing an individual who did not "lock on" Claimant's company was a violation of procedure, proximately causing the assault and his injuries. Claimant alleges he fell to the floor, was picked up by a fellow inmate who yelled for help, and carried him to the facility clinic. Thereafter, he was removed to St. Francis Hospital, and then to Westchester County Medical Center, where he was treated for his injuries. He remained at Westchester County Medical Center for thirty (30) days.

In his affidavit in support of the present motion, Claimant indicates that the testimony of Correction Officers B. Schneider and D. Urciuoli, Sergeant R. Ward and Captain Morton will be material and necessary for the prosecution of his claim.

With respect to Correction Officer Schneider he states that Officer Schneider conducted an investigation and filed a report with DOCS concerning the incident of September 3, 1998. The Court notes that while Claimant did not attach copies of any report by C.O. Schneider, Claimant had included a supporting deposition by C.O. Schneider filed with the Town of Beekman Justice Court as an exhibit to his Claim. In that supporting deposition C.O. Schneider indicates that she saw Claimant at the facility emergency room and attempted to elicit the name of his attacker. She learned the attacker's cell number and could hear the beginning letters of the attacker's name.[1]

C.O. D. Urciuoli, Claimant avers, can provide information concerning the assault "and give account for such misstated facts by sworn affidavit dated February 24, 2003 . . . [where he swore] he is unaware of institutional security policy and procedure that prohibits other inmates from entering locking companies they do not lock; He further sworn to by affidavit that he is unaware of any assault upon claimant September 3, 1998. These allegations are contrary to witness Orciuoli institutional reports filed by him on September 3, 1998 relating the assault upon claimant . . . " [sic] [Affidavit in Support, ¶7].

"Sgt. R. Ward," Claimant argues, "can provide material of institutional security functions and inmate movement during institutional functions throughout the day, and related reports and investigation empolyed of the assault upon Claimant September 3, 1998." [sic] [Affidavit in Support, ¶8].

Captain Morton is described as someone who can provide the same information as Sergeant Ward. [Affidavit in Support, ¶9].

Claimant also asks for an expert witness to be appointed by the Court. As had been pointed out to Claimant in correspondence, this Court does not appoint experts on a litigant's behalf.

In a letter dated July 1, 2003, the Assistant Attorney General advises that Correction Officers B. Schneider and D. Urciuoli, as well as Sergeant (now Lieutenant) Ward are presently assigned to Green Haven. He notes that the former Captain Morton - now Deputy Superintendent for Security - is now assigned to Arthur Kill Correctional Facility; and that the Claimant would be responsible for service of any subpoenas and statutory witness fees. The motion has not otherwise been opposed.

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). Claimant has made this unopposed motion for the issuance of subpoenas directing these various witnesses to appear and testify as Claimant's witnesses at an as yet undetermined trial date. Civil Practice Law and Rules §2302(a) and (b) .

The Court is satisfied, based upon the Claimant's affidavit, and a review of the filed claim, that the testimony of Correction Officers Urciuoli and Schneider may be material and necessary to the prosecution of his claim. As they are both presently assigned to Green Haven, there should be little difficulty in obtaining their presence once a trial date is scheduled by the Clerk's office. Similarly, the testimony of Lieutenant Ward, comports with the theory of Claimant's case and is therefore material and necessary. With respect to Deputy Superintendent Morton, the request for his presence would appear to call for unnecessary, cumulative, testimony, and that aspect of Claimant's motion is denied.

Claimant included proposed subpoenas with his motion papers as required, however any issuance is premature since no trial date has been scheduled. The Court will retain the submitted Subpoenas in its file until the trial date is set. Once the Office of the Chief Clerk of the Court of Claims has assigned a trial date, the Assistant Attorney General is directed to immediately ascertain if any of these three (3) individuals has a new assignment, communicate the information to Claimant in writing, including the anticipated mileage fee, with a copy to the Court. Claimant shall be responsible for tendering the statutory travel expenses so computed and the $15.00 witness fee for each witness if they have relocated. See, Civil Practice Law and Rules §8001(a). As long as the witnesses are located at Green Haven, however, it has been the practice in this Court to waive the appearance fee, therefore Claimant will not be required to tender statutory witness fees. The subpoenas may be served certified mail, return receipt requested. Civil Practice Law and Rules §308(5).

Accordingly, Claimant's Motion Number M-66997 is granted in part and denied in part.

So Ordered.

August 15, 2003
White Plains, New York

Judge of the Court of Claims

[1]The Court also notes that a "Lieutenant G. Schneider" also played a role in the investigation of this incident, and was the recipient of internal memoranda from a Sergeant Cardarelli, C.O. D. Urciuoli, C.O. B. Kennedy, D.O. R. Gauthier, C.O. Osterhoudt, and wrote a report dated September 3, 1998 to "D.S.S. Schneider." All of these memoranda are appended to the Claim. Presumably, these other individuals also named Schneider are not the witness the Claimant is seeking.