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