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