New York State Court of Claims

New York State Court of Claims

STARKER v. THE STATE OF NEW YORK, #2006-009-019, Claim No. 106619, Motion Nos. M-70862, M-70863, M-70864, M-70886


Synopsis


Claimant's application for Court ordered subpoenas was granted, in part.

Case Information

UID:
2006-009-019
Claimant(s):
SCOTT STARKER
Claimant short name:
STARKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106619
Motion number(s):
M-70862, M-70863, M-70864, M-70886
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
SCOTT STARKER, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 30, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This Court had previously scheduled this claim for trial at a pro se trial term to be held at Marcy Correctional Facility. After receiving his notification of the trial date, claimant brought these four motions pertaining to his claim and pending trial, all of which, for purposes of judicial economy, with be considered herein.

In Motion No. M-70862, claimant seeks judicial approval of several subpoenas to compel the production of certain witnesses at trial. In Motion No. M-70863, claimant seeks the issuance of several subpoenas duces tecum to compel the production of certain medical records and x-ray films. In Motion No. M-70864, claimant seeks poor person relief pursuant to CPLR § 1101. Finally, in Motion No. M-70886, claimant has requested an adjournment of his trial.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support, with 12 Proposed Subpoenas (M-70862) 1,2


Notice of Motion, Affidavit in Support, with 5 Proposed Subpoenas duces tecum (M-70863) 3,4

Notice of Motion, Affidavit in Support (M-70864) 5,6


Notice of Motion, Affidavit in Support (M-70886) 7,8


Affirmation in Opposition 9


Correspondence from Claimant, dated 12/26/05 10

As previously stated, this claim was scheduled for trial and was to be heard at a pro se trial term at Marcy Correctional Facility. The trial was scheduled for November 7, 2005, but these motions could not be scheduled until this Court's November 16, 2005 Motion Calendar, a date obviously subsequent to the scheduled date of trial. Accordingly, and upon claimant's request, his trial was adjourned, without date, pending resolution of these motions. As a result, claimant's Motion No. M-70886 requesting an adjournment of his trial has been rendered moot.

In his claim, claimant seeks damages for personal injury resulting from alleged negligent medical treatment and malpractice in treating a broken bone in his right hand, which claimant sustained on June 19, 2002 at Mohawk Correctional Facility, where he was then incarcerated. Claimant apparently received medical treatment for this broken bone both at the facility and at medical care facilities outside the correctional facility. In the subpoenas requested by claimant (M-70862 and M-70863), he seeks the production of certified copies of his medical records maintained at the various facilities, as well as the attendance at trial of the individuals (physicians and nurses) who administered medical treatment to him. These requests will be considered separately herein.
Motion No. M-70862: Subpoenas ad testificandum


In this motion, claimant has requested the issuance of 12 subpoenas to compel the appearance and testimony of different physicians and nurses[1] who had provided medical treatment to him. In his supporting affidavit, claimant has stated that these individuals were personally involved in his treatment and/or diagnosis. Assuming this is the case, their appearance may be material and necessary to the prosecution of his claim. If they provided medical treatment to claimant related to the condition set forth in his claim, these individuals are subject to subpoena as potential fact witnesses at this trial.

In his supporting affidavit, however, claimant has also indicated that he intends to call each of the named physicians not only as a fact witness regarding his or her treatment and diagnosis, but also to provide expert medical testimony that certain aspects of the treatment rendered to claimant constituted negligence and malpractice. If claimant intends to seek expert medical opinion from these physicians, the subpoena is not the proper means to obtain such testimony. A subpoena will only compel the physician's appearance at trial and require that individual to testify as a fact witness. An expert witness who has been subpoenaed to testify to facts based upon his or her knowledge or medical treatment cannot be compelled to give testimony that requires use of that individual's expertise, education, judgment or opinion (58A NY Jur 2d, Evidence & Witnesses, § 641). If claimant intends to elicit expert medical opinion at trial from any of these physicians, claimant must make arrangements with such witness prior to trial, including the negotiation of any expert witness fee. Otherwise, if these medical providers are subpoenaed to testify at trial, their testimony will be strictly limited to matters involved in their medical treatment of claimant.

Additionally, pursuant to statute, claimant is responsible for the payment of the required witness and mileage fees for each individual subpoenaed ($15.00 attendance fee and $.23 per mile), all as provided by CPLR 8001(a). Payment of these fees, must accompany each subpoena to insure that such fees are paid in advance of trial (CPLR § 2303[a]).

Motion No. M-70863: Motion for Court issuance of subpoenas duces tecum

In this motion, claimant seeks judicial approval of five subpoenas duces tecum compelling the production of certified copies of medical records pertaining to his treatment. In the five proposed subpoenas, claimant seeks production of his medical records maintained by the State Department of Correctional Services, Erie County Medical Center, St. Elizabeth's Medical Center (Utica, New York), SUNY Upstate Medical University Hospital (Syracuse, New York), and Dr. Friedman (a physician in Utica, New York who presumably treated claimant during the relevant time period).

Claimant, however, has made no representation to the Court that he has attempted to obtain certified copies of his medical records from these facilities without the necessity of a subpoena. Therefore, once a new trial date has been scheduled for the trial of this claim, this Court will approve subpoenas duces tecum as requested herein, upon a sufficient showing from claimant that he has attempted on his own to obtain certified copies of his medical records from these facilities, without success.

Notwithstanding the foregoing, since the medical records maintained by the Department of Correctional Services are under the direct control of the defendant, the defendant is directed to produce certified copies of the relevant medical records maintained by the department at the trial of this claim.

To insure that the medical records are received and available for trial, any subpoenas approved by the Court shall direct that the medical records are to be forwarded to this Court's Chambers, returnable seven days prior to the yet to be scheduled trial date.

Each subpoena duces tecum shall also contain language that no personal appearance will be required at the trial, upon production of the records set forth therein, and shall be accompanied by a medical authorization, in proper form, signed by claimant.

Motion No. M-70864: Motion for poor person relief

In this motion, claimant seeks poor person relief pursuant to CPLR § 1101.

Upon an examination of the papers submitted herein, the Court finds no proof that this motion was served upon the appropriate county attorney as required by statute (see, CPLR § 1101[c]). Failure to serve a county attorney is, in and of itself, a basis for denial of the requested relief (Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015).

Furthermore, the Court is aware that the filing fee required for this claim was previously determined pursuant to Court of Claims Act, § 11-a(1) by Presiding Judge Richard E. Sise, in an order dated and filed September 26, 2002. In this motion, claimant contends that he is unable to pay the costs and expenses required for the service of subpoenas, witness fees, mileage fees, and any other expenses required in the production of his witnesses and medical records at the trial of this claim.

Pursuant to Civil Practice Law and Rules § 308(5), witnesses may be subpoenaed "in such manner as the court . . . directs, if service is impracticable under . . . [other sections]." The Court is aware that incarcerated claimants may have both practical and financial difficulties in personally serving subpoenas upon a natural person (see Onorato v Scully, 170 AD2d 803; Hanson v Coughlin, 103 AD2d 949; Davis v Coughlin, 96 AD2d 682). Accordingly, any subpoenas authorized herein may be served by certified mail, return receipt requested, rather than by personal service.

In this decision and order, the Court has previously determined and directed payment of the statutory witness fees and mileage fees for each of the subpoenas ad testificandum requested by claimant.

Based on the foregoing, it is

ORDERED, that claimant's motion for subpoenas ad testificandum (M-70862) is hereby GRANTED; and it is further

ORDERED, that claimant's motion for subpoenas duces tecum (M-70863) is conditionally GRANTED; and it is further

ORDERED, that claimant's motion seeking poor person relief (M-70864) is GRANTED, in part, to the extent that service of any subpoenas authorized herein may be made by certified mail, return receipt requested; and in all other aspects said motion is DENIED; and it is further

ORDERED, that claimant's motion seeking an adjournment of this trial (M-70886) is hereby DENIED as moot; and it is further

ORDERED, that the trial of this claim will be heard at this Court's next available prisoner pro se trial term to be conducted at Marcy Correctional Facility; and it is further

ORDERED, that upon receipt of the trial notice from the Court, claimant shall immediately forward any proposed subpoenas authorized by this decision and order, directly to Chambers. Assuming that these subpoenas are in proper form and comply with the directives contained herein, said subpoenas will be issued by this Court and returned to claimant, who will then be responsible for service upon the proper parties. As authorized herein, service of these subpoenas may be made by certified mail, return receipt requested, but payment of the appropriate witness and mileage fees must accompany each subpoena; and it is further

ORDERED, that the defendant shall produce certified copies of the portions of claimant's medical records pertaining to this claim, maintained by the Department of Correctional Services, at the trial hereof.


March 30, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] In one of his proposed subpoenas, claimant designated one of his providers as "Dr. Jane Doe". By correspondence dated December 26, 2005 (see Item 10), claimant has identified this medical provider as Deborah A. Cardinal, RPAC.