New York State Court of Claims

New York State Court of Claims

TOLBERT v. THE STATE OF NEW YORK , #2004-030-570, Claim No. 105584, Motion No. M-68977


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:
September 1, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read and considered on Claimant's motion

for the issuance of certain trial subpoenas pursuant to Civil Practice Law and Rules §2302:

1-4 Notice of Motion; Affidavit in Support of Motion for Subpoena Producing Witnesses by Demeris Tolbert; and attached affidavits by Nathan McKune and Joseph Rucco

  1. Affirmation by Barry Kaufman, Assistant Attorney General
6,7 Filed Papers: Claim, Answer, Amended Answer

Demeris Tolbert, the Claimant herein, alleges in Claim Number 105584 that he was assaulted and battered by a correction officer while he was an inmate at Green Haven Correctional Facility (hereafter Green Haven) on June 10, 2001. The matter is scheduled for trial on September 10, 2004.

Claimant asks that trial subpoenas be issued to Inmates Joseph Rucco, DIN #89-A-8304, and Nathan McKune, DIN # 00-A-5071; and to Albert Paolano, a physician he alleges is employed by the New York State Department of Correctional Services (hereafter DOCS) at Great Meadow Correctional Facility. Since Claimant is not a person authorized to issue a subpoena, he must seek a Court order allowing the issuance of subpoenas upon proper motion, [Chopak v Marcus, 22 AD2d 825, 826 (2d Dept 1964); Civil Practice Law and Rules §2302(a) and (b)], and was advised to do so by letter from the Court dated July 19, 2004. Additionally, a letter scheduling the trial for September 10, 2004 had been sent to Claimant on June 29, 2004.

According to the affidavit attached to the motion, Inmate McKune heard correction officers call for the opening of Claimant's cell, and heard Claimant "shouting please don't hit me" and one correction officer saying "you ain't that tuff now you nigger that like to shoot cops." Inmate Rucco's affidavit indicates that he heard correction officers call out to have Claimant's cell opened and watched correction officers go into Claimant's cell through a "small piece of mirror" and a "reflection from the glass window directly in front of all the cells" and saw officers physically assaulting Claimant.

According to Claimant's Affidavit in support of the present motion, Dr. Paolano treated him at Great Meadow Correctional Facility. Claimant states: "It's extremely essential to claimants case that these witnesses be ordered to be produced before this court to give sworn testimony. Claimant states to this noble and honorable court, that without the testimonies of these witnesses, claimant cannot and will not be able to meet his burden of proving that the state of New York is liable for the assault and battery, verbal abuse and acts of threats that was committed against him by correction officers . . . (sic)." [Claimant's Affidavit, ¶6]. He asks that any fees be waived.

The Assistant Attorney General indicates that the present application was received in his office on August 23, 2004 since the papers were sent to the Office of the Attorney General in Albany. Counsel indicates that Mr. McKune is no longer in DOCS' custody, having been released on November 25, 2002. Inmate Rucco is confined at Arthur Kill Correctional Facility on Staten Island, New York. The cost of his transportation to Sing Sing Correctional Facility for trial on September 10, 2004 would be approximately $750.00, payable in advance to the Arthur Kill Correctional Facility, in addition to the statutory travel and witness fees. See Civil Practice Law and Rules §8001(a) The Assistant Attorney General also provides mileage information for Dr. Paolano, while indicating that the relevance of any testimony he would offer does not seem apparent.

No proposed subpoenas have been appended. Claimant's application for reduction of the filing fee under Civil Practice Law and Rules §1101(f) had been denied by Order of the Presiding Judge on February 21, 2002. Since Claimant has not been granted poor person status under CPLR §1101(a), the provisions of Civil Rights Law §79(3)(b) concerning the expenses of transportation and security as a State charge do not apply.

As an initial matter, Inmate McKune is no longer under the control of the State therefore Defendant cannot produce him. Additionally, since Claimant waited too long to make this application, and has failed to submit proposed subpoenas with the application, although directed to do so, the Court denies the motion on procedural grounds alone.

More substantively, and based upon the Claimant's affidavit with attachments, and a review of the filed claim, the testimony of the remaining inmate witness Rucco is not material and necessary to the prosecution of his claim. See Civil Practice Law and Rules §3101. Although some corroboration of Claimant's version of events as part of the res gestae might be supplied by his testimony, it is not material and necessary to the prosecution of this claim. The testimony is cumulative.

Claimant has not shown how the testimony of a physician treating him at a different facility has any materiality and relevance to the present claim.

Accordingly, Claimant's motion number M-68977 is hereby in all respects denied.

September 1, 2004
White Plains, New York

Judge of the Court of Claims