New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK, #2005-030-565, Claim No. 109781, Motion No. M-71003


Synopsis



Case Information

UID:
2005-030-565
Claimant(s):
JAMES ANTHONY CARTER, JR.
Claimant short name:
CARTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109781
Motion number(s):
M-71003
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
JAMES ANTHONY CARTER, JR., PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
December 22, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers number 1 to 5 were read and considered on Claimant's motion for the issuance of certain subpoenas ad testificandum pursuant to Civil Practice Law and Rules §2302(b) :
1,2 Notice of Motion, Affidavit in Support of James Anthony Carter, Jr., Claimant and proposed subpoenas

  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General
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. ¶2].

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[1], payable in advance to Woodbourne Correctional Facility, in addition to the statutory travel and witness fees. See Civil Practice Law and Rules §8001(a).

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 cumulative.

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.


December 22, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] This is a rough calculation based upon the costs indicated for security as $70.00 per hour for two (2) officers, and mileage to Sing Sing from Woodbourne and back of 77 miles at $ .44 per mile. [Affirmation in Opposition, ¶ 8].