New York State Court of Claims


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New York State Court of Claims

CAMPOLITO v. THE STATE OF NEW YORK, #2004-019-602, Claim No. 107825, Motion No. M-69015


Synopsis


Claimant's motion for a change of venue is granted and request for numerous trial subpoenas is granted in part and denied in part.

Case Information

UID:
2004-019-602
Claimant(s):
ANTHONY M. CAMPOLITO
Claimant short name:
CAMPOLITO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107825
Motion number(s):
M-69015
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ANTHONY M. CAMPOLITO, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 23, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for various forms of relief including, but not limited to, a change of venue and the issuance of 44 trial subpoenas. The State of New York (hereinafter "State") opposes the motion.

This underlying claim alleges that a Department of Correctional Services employee, Owanda Zimmerman, had numerous sexual encounters with claimant while he was an inmate at Elmira Correctional Facility (hereinafter sometimes "Elmira") from 2001 through March 2003. As a result of her actions, Owanda Zimmerman resigned her position and was charged with rape in the 3rd degree in violation of Penal Law 130.05 (3) (e).[1]


This claim contains causes of action based upon negligence and assault and battery. The claim was served on the Office of the Attorney General on May 30, 2003 by way of certified mail, return receipt requested, and filed with the Clerk of the Court on June 4, 2003. The State filed a Verified Answer on July 9, 2003 and an Amended Verified Answer on July 25, 2003. A trial in this matter was originally scheduled for August 23, 2004 at Elmira Correctional Facility, but cancelled prior thereto for reasons which will be addressed hereinbelow. The court will now address all of the issues raised by claimant in seriatim.[2]

  1. Change of venue
Claimant requests a change of venue for his trial due primarily to safety concerns in returning to Elmira, the site of the incidents underlying this claim. By way of background, claimant was notified of an August 23, 2004 trial to be held at Elmira Correctional Facility in a letter from the court dated July 16, 2004. Claimant responded with a letter to chambers dated July 26, 2004 requesting various forms of relief including a change of venue.[3] The court replied to claimant in a letter dated August 3, 2004 requesting that he clarify whether he was seeking an adjournment of his trial. Claimant explained in a letter dated August 6, 2004 that he was not seeking an adjournment due to health reasons, but rather was requesting a change of venue due to safety concerns. The court then addressed claimant's original requests in a letter dated August 11, 2004 advising him, in pertinent part, that his request for a change of venue was denied.[4]


Thereafter, chambers received a telephone call from two Elmira employees indicating that claimant's safety at Elmira could not be guaranteed. Upon receipt of that information, the court immediately adjourned the trial without date and notified both parties in a letter dated August 20, 2004 that the trial was adjourned. It was at this point that the court advised claimant that it would deem his prior submissions as a formal motion and reconsider his request for a change of venue.


In opposition, the State does not strenuously oppose claimant's request for a change of venue nor specifically address claimant's safety concerns or the telephone call from Elmira employees indicating a similar concern. The court originally rejected claimant's request for a change of venue based upon the information known at that time, namely only claimant's stated suspicions of a safety concern. (DeBolt v Barbosa, 280 AD2d 821). Upon further consideration, however, and in view of the telephone call received from Elmira, the court has no alternative but to grant claimant's motion for a change of venue and will direct that claimant's trial be held in the Court of Claims courtroom in Binghamton, New York. The court will leave it to the discretion of the Department of Correctional Services (hereinafter "DOCS") to make whatever transportation, housing, and/or security arrangements as are necessary to transport claimant to Binghamton for his trial, on the condition that claimant not be transported to or through Elmira Correctional Facility at any point.

The court has rescheduled claimant's trial to be held the entire week of August 22, 2005 at the Court of Claims courtroom in Binghamton, New York. Additionally, the court directs that the trial be bifurcated meaning that the trial will address the issue of liability only.
A separate trial on the issue of damages will be scheduled at a later time in the event that claimant is successful in the liability phase of his trial.

  1. Assignment of counsel
Claimant was previously denied counsel in this matter. (Campolito v State of New York, Ct Cl, February 25, 2004, Lebous, J., Claim No. 107825, Motion No. M-67994 [UID No. 2004-019-518]).[5] To the extent that claimant's request herein may be construed as an attempt to reargue that motion, it is denied inasmuch as claimant offers nothing indicating the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law originally presented that warrants reargument of this court's prior Decision & Order. (CPLR 2221 [d]; Foley v Roche, 68 AD2d 558, 567).


That having been said, however, in view of the underlying allegations, the court finds it somewhat perplexing that claimant has been unable to retain counsel on a contingency fee basis. Due to the increasing complexity of this matter the court would encourage claimant to continue his attempts to retain counsel.[6] In the event claimant is able to retain counsel at anytime prior to trial, the court would consider an adjournment of trial in order to provide counsel time to prepare for trial and engage in additional discovery, if necessary.


Finally, on the subject of legal representation, claimant requests the issuance of an order preventing the assistant attorney general from representing Ms. Zimmerman in this claim. Ms. Zimmerman is not a party to this claim, but rather is a former State employee that the State has named as a potential trial witness. Quite simply, even if the State calls Ms. Zimmerman as a trial witness, she would not be represented by the Office of the Attorney General. Claimant's request is misguided and will be denied.

  1. Claimant's testimony
Claimant requests an order striking his name from the State's trial witness list. (State's Response to Demand for Discovery and/or Inspection dated January 28, 2004). In the first instance, the court notes that as the claimant in this civil case, the burden of proof rests with claimant. In the event claimant chooses not to testify in support of his own claim, then he risks failing to establish a prima facie case. Furthermore, even if claimant chooses not to testify in connection with presenting his own case, the State still has the unequivocal right to call claimant as a witness in presenting its defense. As such, the court declines to issue any order prohibiting the State from calling claimant as a witness at trial.

  1. Subpoenas
The bulk of claimant's motion relates to his requests for the issuance of 44 trial subpoenas for various witnesses. Claimant, as an inmate proceeding pro se, is not a person authorized to issue subpoenas and, as such, must seek a court order allowing the issuance of a subpoena. (CPLR 2302). Accordingly, it is claimant's burden here to establish how each of the proposed witnesses is material and necessary to the prosecution of his claim.[7] More specifically, to the extent that claimant is attempting to establish negligent supervision, it will be his burden at trial to "[e]stablish that the defendant knew of its employee's propensity to commit the criminal act, or that the defendant would have known of such propensity if he or she had been adequately supervised (see Honohan v Martin's Food of South Burlington, Inc., 255 AD2d 627; Ray v County of Delaware, 239 AD2d 755)." (Prentice v State of New York, Ct Cl, March 30, 2004, Midey, Jr., J., Claim No. 91731, Motion Nos. M-65785 & M-65786 [UID No. 2004-009-01]). Stated another way, in examining claimant's request for subpoenas, the crucial inquiry is whether the requested witness may possess testimony that is material and necessary on the key issue of whether the State knew or should have known of Ms. Zimmerman's propensity to engage in this criminal conduct and/or the State knew or should have known of the ongoing relationship between claimant and Zimmerman and failed to intercede. For ease of reference the court has divided claimant's requested trial witnesses into several categories as outlined hereinbelow.


A. Elmira employees

The common dominator for these witnesses is that they were each employed in some capacity at Elmira Correctional Facility during the relevant time frame.


According to claimant, proposed witnesses Rhonda Aidela, an Elmira secretary, and Paul Daughtery, an Elmira nurse, each worked in the same area as Ms. Zimmerman and should be able to testify as to their personal observations of claimant and Ms. Zimmerman. The court is satisfied, based upon the claimant's submissions, and a review of the filed claim, that the testimony of Rhonda Aidela and Paul Daughtery may be material and necessary to the prosecution of his claim. As such, claimant's motion for the production at trial of Rhonda Aidela and Paul Daughtery is granted.


Charles Fontana, an Elmira psychologist, is alleged to have been the attending psychologist when claimant was in the special housing unit during the investigation into this matter. According to claimant, Mr. Fontana will testify to his observations of the investigation. The court finds that claimant's explanation of Mr. Fontana's expected testimony is too vague. Furthermore, the investigation phase does not relate to the key issue of notice. As such, claimant's subpoena request for Charles Fontana is denied.


Claimant alleges that proposed witness Maryla Nowakowska was his psychologist and could testify to his character and/or demeanor, as well as any personal observations of claimant with Ms. Zimmerman as her office was also in the same area. The court finds that Ms. Nowakowska's observations of claimant and Ms. Zimmerman may be material and necessary to the prosecution of his claim.[8] As such, claimant's motion for the production at trial of Maryla Nowakowska is granted.

Helene Tomberelli, an Elmira nurse, is also alleged to have worked in the same area as Ms. Zimmerman. Additionally, claimant alleges Ms. Tomberelli was his attending psychiatric nurse so she could testify to his character and credibility. The court finds that Ms. Tomberelli's observations of Ms. Zimmerman in her work area may be material and necessary to the prosecution of his claim. As such, claimant's motion for the production at trial of Helene Tomberelli is granted.

Next, Peter Russell, the Elmira Mental Health unit chief, is alleged by claimant to have created false documents on his character for his mental health file. The State has indicated that it plans to call Mr. Russell as a witness at trial. The court finds that due to his position as Elmira Mental Health unit chief, Mr. Russell may possess testimony that is material and necessary to the prosecution of this claim. In any event, based on the State's representation, the court directs that the State produce Mr. Russell at trial without the need for a subpoena.


Cherie Terpack, an Elmira health care management technician, is alleged by claimant to have observed and interacted with him and Ms. Zimmerman and will testify to claimant's character, the workings of the mental health area and security related matters. The court finds that Ms. Terpack's observations of claimant and Ms. Zimmerman may be material and necessary to the prosecution of his claim. As such, claimant's motion for the production at trial of Cherie Terpack is granted.


Calvin West, the Elmira superintendent, is listed by claimant because he was allegedly aware of Ms. Zimmerman's promiscuous reputation and prior affairs with Elmira employees. The court finds that due to his supervisory capacity, Mr. West's knowledge of Ms. Zimmerman's behavior is material and necessary to the prosecution of his claim. As such, claimant's motion for the production at trial of Calvin West is granted.


B. Auburn employees

The next six proposed witnesses are all alleged to have been employed at Auburn Correctional Facility (hereinafter "Auburn") which is where claimant was transferred after his encounters with Ms. Zimmerman were discovered and following his suicide attempt.


John Burge, the Auburn superintendent, is alleged to have contacted claimant about the Zimmerman investigation. The court finds that claimant has not adequately demonstrated how Mr. Burge's testimony would be material and necessary on the key issue of notice, particularly since Mr. Burge's interactions with claimant appear to have taken place after claimant's involvement with Ms. Zimmerman ended.[9] As such, claimant's subpoena request for John Burge is denied.


Claimant also seeks a Mr. Burkheart, identified as an Auburn social worker, who can testify to claimant's mental state after the transfer. The court finds that claimant's mental state after this incident is not material and necessary to the liability portion of this trial and, as such, will deny the issuance of a subpoena in connection with the liability phase. As such, claimant's subpoena request for Mr. Burkheart is denied.


Next, claimant seeks the issuance of subpoenas for two Auburn captains, namely a Mr. Gumberson and Mr. Roark. Claimant alleges both individuals will testify to his mental state and fear of the inspector general's officer after transfer, as well as their handling of disciplinary actions against claimant. The court finds that claimant's mental state after this incident is not material and necessary to the liability portion of his trial. As such, claimant's subpoena requests for Mr. Gumberson and Mr. Roark are denied.


Claimant next names Lynda Johnson, an Auburn psychiatric nurse, as a potential witness alleging that she interviewed claimant after his transfer and will testify to the facts complained of by him. Again, the court finds that claimant's mental state after this incident is not material and necessary to the liability portion of his trial. As such, claimant's subpoena request for Ms. Johnson is denied.


Claimant also seeks to subpoena Cheryl Parmiter, the Auburn inmate grievance program supervisor, alleging she will testify to the investigation of claimant's grievances. For the same reasons stated above, the court finds that any proposed testimony regarding the investigation after the alleged incidents is not material and necessary to the prosecution of the liability portion of this claim. As such, claimant's subpoena request for Ms. Parmiter is denied.


C. DOCS Retired Employees

Claimant alleges the next ten witnesses were all employed by DOCS but were allegedly forced to retire due to some connection to Ms. Zimmerman.


Claimant names William Cristofaro, an Elmira sergeant, and John Lebednik, an Elmira lieutenant, as individuals he states for certain were forced to retire due to "involvement with Zimmerman." (Claimant's Reply to Affirmation in Opposition sworn to October 11, 2004, ¶ 16). The court finds claimant's explanation is too vague. As such, claimant's subpoena requests for Mr. Cristofaro and Mr. Lebednik are denied.


Claimant also lists Michael Stanley, a retired Catholic chaplain from Ithaca, as a potential witness. The court notes that Ms. Zimmerman identified Mr. Stanley in a statement as having served as an intermediary between claimant and Ms. Zimmerman. (Zimmerman statement dated May 6, 2003, attached as part of Exhibit A to State's Response to Demand for Discovery and/or Inspection dated January 28, 2004). The court finds that the Mr. Stanley's testimony may be material and necessary to the prosecution of this claim. As such, the court will grant claimant's motion for a trial subpoena for Michael Stanley.


Next, claimant alleges the following individuals were forced to retire from DOCS: Kevin Carroll; Clifford West; Richard Martin; Nicolo Martino, Jr.; John Moore; Thomas Savino, Jr.; and Daniel Stowell. Claimant readily admits that he does not know for certain that these individuals were forced to retire due to their involvement with Ms. Zimmerman. Rather, claimant admits that he reviewed a publication identified as "DOCS TODAY" which apparently lists the names of retired employees and has requested any individual listed in that publication as having retired in the same time frame as the investigation into Ms. Zimmerman. The court finds that claimant has failed to establish that any of these individuals possess information that is material and necessary to his claim. As such, claimant's requests for trial subpoenas for Kevin Carroll, Clifford West, Richard Martin, Nicolo Martino, Jr., John Moore, Thomas Savino, Jr., and Daniel Stowell are all denied.


D. Zimmerman Investigation

Claimant next requests five witnesses that were all somehow connected with legal cases involving or investigations into Ms. Zimmerman.


G. Armstrong and Detective Capriotti are both Town of Manlius police investigators who allegedly arrested Ms. Zimmerman on unrelated charges. The State has already indicated that it plans to call Detective Capriotti as a witness at trial. As such, the court directs the State to produce Detective Capriotti at trial without the need for a subpoena. With respect to Mr. Armstrong, the State does not specifically address this request. (Affirmation of Carol A. Cocchiola, AAG, ¶ 17). The court cannot assume that Mr. Armstrong's testimony would be repetitive of Detective Capriotti. As such, in this court's view, Mr. Armstrong may possess testimony that is material and necessary to the prosecution of this claim. As such, claimant's motion for a trial subpoena for Mr. Armstrong is granted.


Claimant also requests James Bezio, a narcotic's investigator from the State Inspector General's office, as a witness. The State has indicated it plans to call Mr. Bezio as a witness. As such, the court directs the State to produce James Bezio at trial without the need for a subpoena.


The next two requested trial witnesses by claimant are identified as Michael Ciaccia and Sharon Ciaccia of Fayetteville, New York. Claimant alleges, without further explanation, that their testimony is expected to refute the testimony of the Town of Manlius police investigators Mr. Armstrong and Det. Capriotti. The court finds that claimant's explanation of the Ciaccias' expected testimony is too vague. As such, claimant's requests for subpoenas for Michael Ciaccia and Sharon Ciaccia are denied.


E. Legal Nexus

Claimant has requested subpoenas for the Hon. Steven Forrest, Elmira City Court Judge, and Geoffrey Peterson, assistant district attorney with the Chemung County DA's office, both of whom were apparently involved in Ms. Zimmerman's criminal case. Claimant has failed to establish how the testimony of these individuals is material and necessary to the prosecution of his claim. Claimant's requests for subpoenas for Hon. Steven Forrest and Geoffrey Peterson are denied.


Additionally, claimant has requested a subpoena for James Shoemaker, Esq., a former assistant attorney general in the Binghamton office, involved in the defense of this claim. Claimant alleges that Mr. Shoemaker illegally obtained various documents which were later included in the State's discovery responses. The court finds that claimant has failed to establish that the testimony of Mr. Shoemaker is material and necessary to prosecution of his claim. Claimant's request for a subpoena for James Shoemaker, Esq. is denied.


Claimant also seeks a subpoena for Robin Goldman, an assistant counsel with the State Mental Health Department in Albany. Claimant alleges that Ms. Goldman could testify to Ms. Zimmerman's employment contract, education, and credentials. The court finds that Ms. Zimmerman's employment and educational background when she was hired by the State is material and necessary with respect to the issue of the State's notice of her propensity to engage in the criminal conduct alleged. That having been said, however, in the event Ms. Goldman herself does not possess such direct knowledge, the court will permit the State to produce someone from the State Mental Health Department with such knowledge of the hiring procedures involving Ms. Zimmerman and her qualifications. As such, the court will grant claimant's request for a subpoena for an individual from the Mental Health Department with direct knowledge regarding the hiring of Ms. Zimmerman and her employment and educational background.


Claimant also requests a subpoena for Bruce Stanton, the Chemung County probation officer, who apparently requested a statement from claimant in connection with the criminal case against Ms. Zimmerman. It appears that claimant requests Mr. Stanton's presence for the sole purpose of admitting into evidence at trial claimant's own statement given to Mr. Stanton as part of the sentencing report on Ms. Zimmerman. Claimant's argument is misplaced since any such statement would be inadmissible hearsay. Rather, to the extent that claimant desires to introduce into evidence whatever comments are contained in his statement, he need merely testify to these matters himself at trial. As such, claimant's subpoena request for Bruce Stanton is denied.


F. Miscellaneous requests

Claimant requests a subpoena for an individual named Erin Bartlett asserting that she will testify to the credibility and character of Ms. Zimmerman and other State employees. Claimant has failed to provide sufficient information from which this court could conclude that Ms. Bartlett's testimony is material and necessary to the prosecution of his claim. As such, claimant's request for a subpoena for Erin Bartlett is denied.


Next, claimant requests a subpoena for Nancy Campolito, with a Liverpool, New York address. Claimant provides no details on his relationship to this witness, indicating only that she is a hostile witness who exchanged e-mails with and sent mail to Ms. Zimmerman. Claimant also states that Ms. Campolito will be able to testify how Ms. Zimmerman took advantage of him. The court finds that claimant's explanation of Ms. Campolito's expected testimony is too vague and does not demonstrate how it is material and necessary on the key issue of notice. As such, claimant's subpoena request for Nancy Campolito is denied.


The next requested subpoena is for a witness named Deborah Clark, a Correctional Review Specialist II, with the State Commission of Correction in Albany. Claimant alleges that Ms. Clark was contacted by a television news network and engaged in a cover-up. Claimant has failed to establish that Ms. Clark's testimony is material and necessary to this matter. Claimant's request for a subpoena for Deborah Clark is denied.


With respect to requested witness Glenn Goord, DOCS Commissioner, claimant alleges that he contacted the Commissioner regarding his grievances and that he must have been aware of the actions and firings of all the involved DOCS employees. Claimant has failed to establish that Commissioner Goord had any personal knowledge regarding this incident. As such, claimant's request for a subpoena for Commissioner Glenn Goord is denied.


Next, claimant requests a subpoena for Bruce McCormack, a DOCS employee formerly employed at Elmira Correctional Facility who allegedly had an affair with Ms. Zimmerman. It appears Mr. McCormack may now work at Moriah Shock Incarceration Correctional Facility. Ms. Zimmerman admitted an affair with Captain McCormack in one of her statements to investigators. (Zimmerman statement dated May 1, 2003, attached as part of Exhibit A to State's Response to Demand for Discovery and/or Inspection dated January 28, 2004). The court finds that Captain McCormack may possess testimony that is material and necessary to the prosecution of this claim. As such, claimant's motion for the production of Captain Bruce McCormack at trial is granted.


Claimant also seeks a subpoena for Captain McCormack's wife. The court finds that claimant has failed to set forth any grounds on how the testimony of Mr. McCormack's spouse is material and necessary to this claim. As such, claimant's request for a trial subpoena for Mrs. McCormack is denied.


The next requested witness is identified only as Melissa Payton of Leeds, New York. Claimant merely alleges that she had contact with Ms. Zimmerman on a myriad of levels. The court finds claimant's allegations are too vague to establish that Ms. Payton's testimony is material and necessary to the prosecution of his case. As such, claimant's request for the issuance of a trial subpoena for Ms. Payton is denied.


Claimant also identifies Regina Waldroup of Elmira, New York as a potential witness. Claimant alleges that she investigated all facets of claimant's complaints regarding this matter. Again, the court finds claimant's allegations are too vague and thus insufficient to establish that Ms. Waldroup's testimony is material and necessary to this trial. As such, claimant's request for the issuance of a trial subpoena for Ms. Waldroup is denied.


The court notes that claimant has withdrawn his request for a subpoena for unnamed employees of Arnot Medical Center ambulance service. Parenthetically, the court notes even if claimant had not withdrawn this request the court would have denied the issuance of the subpoena since there is no showing that the ambulance personnel who transported claimant to the hospital after his suicide attempt have any testimony material and necessary on the key issue of notice for the liability portion of this trial.


Finally, claimant requests a subpoena for Owanda Zimmerman. Obviously, Ms. Zimmerman possesses testimony that would be material and necessary to the prosecution of this claim. The State has indicated that it plans to call Ms. Zimmerman as a witness at trial. As such, the court need not sign any subpoena at this time unless the State notifies the court and claimant in writing within 60 days from the filing of this Decision & Order that it does not plan to produce her at trial. That having been said, however, the court notes that there is a reference in the papers to Ms. Zimmerman currently residing in Pennsylvania. If true, this court does not have the jurisdiction to subpoena an out-of-state non-party witness.


In sum, in relation to claimant's motion for the issuance of 44 trial subpoenas, the court has authorized the production of 10 witnesses; denied 30 of the requested witnesses; and finds that the State plans to call the remaining 4 individuals. For reference, the court has prepared an alphabetical list of claimant's requested trial witnesses and the disposition thereof. (Court's Exhibit A). The court will next address the procedural issues raised by those subpoenas which were granted.


G. Procedural subpoena matters

The State is directed to ascertain the current assignments of DOCS employees Aidela, Daughtery, Nowakowska, Tomberelli, Terpack and West. Such information shall be communicated, in writing, to claimant with a copy to the court within 60 days of the filing of this Decision & Order. To the extent that any of these DOCS employees are currently stationed at Elmira Correctional Facility, the State is directed to produce those witnesses at trial without the need for subpoenas or payment of the statutory witness fees and mileage. The court notes that this matter was originally scheduled to be tried at the Elmira Correctional Facility when a change of venue to Binghamton was necessitated through no fault of claimant. Since it is the custom to waive the witness fee when a trial is held in the same facility as the witness is located, the court finds that requiring claimant to pay the statutory witness fees and mileage for DOCS employees stationed at Elmira to appear in Binghamton would unnecessarily penalize claimant for the change of venue. (14 Weinstein-Korn-Miller, NY Civ Prac ¶ 8001.02 [the court has the inherent authority to waive the statutory witness fee which is appropriate in this case]).


With respect to DOCS employee Bruce McCormack, since it appears that he may no longer be stationed at Elmira, he is entitled to the payment in advance of the statutory witness fee of $15 and mileage. (CPLR 8001 [a]). The State is directed to ascertain his current assignment and communicate the same, in writing, to claimant with a copy to the court within 60 days of the filing of this Decision & Order including an estimate on the mileage from his current location to Binghamton. Additionally, the State is directed to provide an address at which Captain McCormack may be served with said subpoena by certified mail, return receipt requested, or indicate that the Office of the Attorney General will accept service on his behalf. (CPLR 308 [5]). The court will retain the submitted subpoena in its file until such information is received from the State.


With respect to Robin Goldman or someone from the Office of Mental Health with direct knowledge regarding the hiring of Ms. Zimmerman and her employment and educational background, this individual will be entitled to the payment in advance of the statutory witness fee of $15 and mileage. The State is directed to ascertain the individual from the Office of Mental Health with such knowledge to be produced at trial and communicate the same, in writing, to claimant with a copy to the court within 60 days of the filing of this Decision & Order including an estimate on the mileage from that individual's current location to Binghamton. Again, at that time, the State is also directed to provide an address at which said individual may be served with said subpoena by certified mail, return receipt requested, or indicate that the Office of the Attorney General will accept service on their behalf. (CPLR 308 [5]). The court will retain the submitted subpoena in its file until such information is received from the State.


Finally, with respect to non-State employees, Michael Stanley and Mr. Armstrong, these witnesses are also entitled to the payment in advance of the statutory witness fee of $15 and mileage. (CPLR 8001 [a]). The State is directed to ascertain their location and communicate the same, in writing, to claimant with a copy to the court within 60 days of the filing of this Decision & Order including an estimate on the mileage from those individuals' current locations to Binghamton. Once again, the State is also directed to provide addresses at which said individuals may be served with said subpoena by certified mail, return receipt requested, or indicate that the Office of the Attorney General will accept service on their behalf. (CPLR 308 [5]). The court will retain the submitted subpoenas in its file until such information is received from the State.


In sum, the court has rescheduled claimant's trial to be held the week of August 22, 2005 at the Court of Claims courtroom in Binghamton, New York. The trial will be bifurcated meaning that the trial will address the issue of liability only. DOCS is directed to produce claimant at the aforesaid date and time for trial in accordance with the terms of this Decision & Order, namely on the condition that claimant not be transported to or through Elmira Correctional Facility at any point.


In view of the foregoing, it is ORDERED that claimant's motion, Motion No. M-69015, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing.



December 23, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims

Court Exhibit A
  1. Subpoenas granted by court (Total 10)
1. Aidela, Rhonda

2. Armstrong, G.

3. Daughtery, Paul

4. Goldman, Robin

5. McCormack, Bruce

6. Nowakowska, Maryla

7. Stanley, Michael

8. Terpack, Cherie

9. Tomberelli, Helene

10. West, Calvin

  1. State witnesses (Total 4)
1. Bezio, James

2. Capriotti, Detec.

3. Russell, Peter

4. Zimmerman, Owanda

  1. Subpoenas denied by court (Total 30)
1. Arnot Medical Ctr Ambulance Personnel

2. Bartlett, Erin

3. Burge, John

4. Burkheart, Mr.

5. Campolito, Nancy

6. Carroll, Kevin

7. Ciaccia, Michael

8. Ciaccia, Sharon

9. Clark, Deborah

10. Cristofaro, William

11. Fontana, Charles

12. Forrest, Steven Hon.

13. Goord, Glenn

14. Gumberson, Mr.

15. Johnson, Lynda

16. Lebednik, John

17. McCormack, Mrs.

18. Martin, Richard

19. Martino, Nicolo, Jr.

20. Moore, John

21. Parmiter, Cheryl

22. Payton, Melissa

23. Peterson, Geoffrey

24. Roark, Mr.

25. Savino, Thomas, Jr.

26. Shoemaker, James

27. Stanton, Bruce
28. Stowell, Daniel

29. Waldroup, Regina
30. Clifford West




The court has considered the following papers in connection with this motion:

  1. Claim, filed June 4, 2003.
  2. Answer, filed July 9, 2003.
  3. Amended Answer, filed July 25, 2003.
  4. Notice of Motion, dated July 26, 2004.
  5. "Affidavit in Support of Notice of Motion", of Anthony M. Campolito, unsworn to, and dated July 26, 2004, with attachments.
  6. Letter from Anthony M. Campolito to court, dated July 26, 2004, and received August 3, 2004.
  7. "Notice of Motion", dated August 14, 2004, and received by the court on August 19, 2004.
  8. "Motion In-Support/Affidavit", of Anthony M. Campolito, unsworn to, dated August 14, 2004, with attached exhibits.
  9. "Notice of Motion", dated August 25, 2004 and received by the court on August 30, 2004.
  10. "Memorandum of Law In - Support of Claim", dated August 25, 2004, with attachments.
  11. Notice of Motion No. M-69015, dated October 7, 2004, and filed October 14, 2004.
  12. "Reply to Affirmation in Opposition", of Anthony M. Campolito, in support of motion, undated, and verified October 11, 2004.
  13. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated October 4, 2004, and filed October 6, 2004.









[1]Penal Law 130.05 (3) (e) states that inmates are incapable of consent. By all accounts, Ms. Zimmerman pled guilty to a lessor offense and did not serve prison time in connection with this charge.
[2]The court deemed all of claimant's submissions as one motion including his Notices of Motion dated July 26, 2004, August 14, 2004, August 25, 2004, and October 7, 2004. Parenthetically, the court notes that it accepted late papers from both claimant and the State.
[3]Claimant's letter dated July 26, 2004 also alluded to cardiac health problems and a recent release from a hospital, although he did not submit any supporting medical documentation.
[4]The court issued a letter rather than a Decision & Order due to the impeding trial date and claimant's failure to have filed a formal motion.
[5]Selected unreported decisions from the Court of Claims are available via the Internet at
[6]It is unclear whether claimant would qualify for service from the State's Mental Hygiene Legal Services or from disability advocate resources.
[7]Claimant originally argued he was not required to provide any details on how each witness was material and necessary, rather stating only in conclusory terms that each possessed such information. Obviously, claimant's position was incorrect as it is his burden to demonstrate how each witness is material and necessary. In any event, claimant's last submission to the court contained his rationale for requesting each witness.
[8]To the extent that claimant has requested several witnesses for the additional purpose of testifying to his character and/or demeanor, the court will reserve for trial the admissibility of such testimony. Claimant, however, should be forewarned that such testimony is typically not admissible since the court would determine claimant's credibility from his own trial testimony.
[9]To the extent that some of these witnesses may be material and necessary to a damages trial, the court will reserve claimant's right to request subpoenas in connection with any damages trial in the event he is successful in establishing the State's liability.