Claimant, an inmate appearing pro se, moves for the production of various
witnesses and documents at his damages trial which the court deems as a request
for the issuance of trial subpoenas pursuant to CPLR 2302. The State of New
York (hereinafter "State") opposes the motion. A trial on the sole issue of
damages has been scheduled for Tuesday, August 30, 2005 at the Elmira
This court previously granted claimant summary judgment on the issue of
liability for his missing gold chain and medal. (Medina v State of New
, Ct Cl, January 20, 2005, Lebous, J., Claim No. 104005, Motion No.
M-69409 [UID No. 2005-019-503]).
only remaining issue for trial is the damages, if any, to which claimant is
entitled for the loss of his gold chain and medal.
Now, claimant seeks the production of five witnesses, together with various
documents, at his damages trial. Claimant has set forth the reasons he believes
each individual and/or document is necessary for his damages trial.
Claimant's request for subpoenas for inspector general investigator George
Santiago; the Clinton Correctional Facility inmate record's coordinator; the
Southport Correctional Facility counselor, Mr. Service; and Elmira Correctional
Facility counselor, W. Bills, will be discussed together since each raises
similar issues. With respect to each of these individuals, claimant explains
that he needs their respective testimony to establish that the State possessed
his property at one time or another or, stated another way, to establish
liability. However, this court has already granted claimant summary judgment on
liability. Consequently, none of these proposed witnesses is material and
relevant on the issue of damages and, as such, claimant's motion for the
issuance of subpoenas for these four individuals is denied. For the same
reason, claimant's requests for his personal property lists from Clinton
Correctional Facility and Southport Correctional Facility are not material and
relevant on the issue of damages and are denied as well.
Claimant also seeks a subpoena for an inmate with the same last name as his,
one Joseph Medina.
Claimant has previously
complained to this court that the correctional facilities are continually
sending his mail, including legal mail regarding this claim, to inmate Joseph
Medina and vice versa. Claimant now states that he believes that the original
jewelry receipt for his missing items may have gone to Joseph Medina by mistake.
More specifically, claimant requests that Joseph Medina be "[p]roduced to
testify that he, and not claimant, wrongfully received original jewelry receipt,
that claimant needs for trial. To find out if he still has it in his
belongings, and what, if anything did he do with it...." (Claimant's Affidavit,
p 3). The court notes that in connection with his prior motion for summary
judgment, claimant had indicated he would produce the original receipt at trial
if he was able to retrieve the same from the inmate record's coordinator. It is
unclear why claimant now believes Joseph Medina possesses his original receipt
compared to his earlier statement that it was in the possession of the inmate
record's coordinator. The court finds that claimant's belief that another
inmate may possess his original receipt is too speculative and, as such, the
court denies claimant's request for a subpoena for inmate Joseph Medina.
Parenthetically, the court notes that in connection with the prior motion for
summary judgment claimant attempted to establish damages by submitting a
photocopy of a receipt for the missing chain and medal. The State objected to
the admissibility of said receipt arguing that the same was not evidence in
admissible form and, in any event, was partially
That having been said, however,
claimant may testify at trial regarding the loss of his original receipt as a
foundation for the admissibility as secondary evidence of the photocopy of his
receipt. (57 NY Jur 2d, Evidence, § 247).
Accordingly, in light of the foregoing, it is ORDERED that claimant's motion
for the issuance of subpoenas compelling the production of witnesses and
documents at trial, Motion No. M-69927, is DENIED.
DECISION AND ORDER, Lebous, J., Claim No. 104005, Motion No. M-69409, filed
February 9, 2005.
Notice of Motion No. M-69927, dated March 23, 2005, and filed March 28,
Affidavit of Jose Medina, in support of motion, dated and verified March 23,
Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated April
15, 2005, and filed April 18, 2005.
Reply Affidavit of Jose Medina, sworn to May 3, 2005, unfiled, with