4,5 Filed Papers: Claim, Answer
James Anthony Carter, Jr. alleges in Claim Number 109781 that on June 10, 2004,
while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing
Sing), Defendant's agents denied him the use of a medically necessary cane that
had been issued to him by medical personnel as he recuperated from surgery on
his foot. All the causes of action asserted stem from this factual premise.
Trial of the matter is scheduled for January 13, 2006 at Sing Sing. 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). Pursuant to this Court's
instructions, [see Letter to Claimant dated November 21, 2005], Claimant
has brought this motion seeking the issuance of two (2) trial subpoenas.
The Court is satisfied, based upon the Claimant's affidavit, and a review of
the filed claim, that the testimony of these witnesses is not material and
necessary to the prosecution of his claim. See §3101 Civil Practice
Law and Rules.
In his Affidavit in Support of the present application, Claimant indicates that
the trial testimony of Michael Watts, DIN #83A2078, an inmate currently
incarcerated at Woodbourne Correctional Facility (hereafter Woodbourne), and E.
Havay, a registered nurse currently employed at Sing Sing, is sought because
they can "give valuable, necessary and material evidence to the matters expected
to be proved." [Affidavit in Support of Motion, ¶5].
In an affidavit attached to Claimant's moving papers Mr. Watts indicates that
on June 10, 2004 he saw C.O. Patterson pick up a cane leaning against the steam
pipes on H-gallery, and overheard a conversation between Claimant and C.O.
Patterson supporting Claimant's factual assertions to the effect that Claimant
told the officer "that he was just putting his commissary in his cell" and that
C.O. Patterson responded by saying "it was your cane but now it's mine."
[Exhibit A, Affidavit of Witness sworn to December 7, 2004, ¶1]. Mr. Watts
apparently also saw C.O. Patterson walk away with the cane. [id.
The Assistant Attorney General indicates that because Claimant has not been
granted poor person status, the provisions of Civil Rights Law §79(3)(b)
concerning the expenses of transportation and security as a State charge do not
apply. Claimant would be responsible for the cost of transporting witness
Michael Watts from Woodbourne to Sing Sing and for associated security. The
Assistant Attorney General has indicated that the cost for transport and
security from Woodbourne to Sing Sing Correctional Facility for trial on January
13, 2006 would be approximately $ 500.00
payable in advance to Woodbourne Correctional Facility, in addition to the
statutory travel and witness fees. See
Civil Practice Law and Rules
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. Indeed, it does not appear that
Defendant has even denied that the cane was removed. The testimony is
With respect to Nurse Havay, Claimant indicates that the nurse saw him on June
12, 2004, after the correction officer allegedly took his cane, and could
testify concerning Claimant's medical condition. [Exhibit B, Ambulatory Health
Record for June 12, 2004].
The Assistant Attorney General indicates that the only nurse with a name
similar to "Havay" is Nurse E. Hamawy, who retired from DOCS as of September
14, 2005. [Affirmation in Opposition, ¶7]. It is further indicated that
Nurse Hamawy is a British citizen whose whereabouts are unknown. As such, she
is no longer under the control of the State and, if her testimony was truly
material and necessary, it would be incumbent upon Claimant to subpoena her
directly. In any event, other than having seen Claimant at a sick call
according to the Ambulatory Health Record entries, Nurse Hamawy's testimony does
not appear to be that significant.
Accordingly, Claimant's motion for the issuance of trial subpoenas [M-71003] is
in all respects denied.