On November 15, 2006, the following papers were read on Claimant’s
Notice of Motion No. M-72042 and Affidavit in Support
Notice of Motion No. M-72043 and Affidavit in Support
Notice of Motion No. M-72044 and Affidavit in Support
Defendant’s Affirmation in Opposition (M-72042, M-72043 and M-72044) and
Notice of Motion No. M-72379
Notice of Motion No. M-72380
Defendant’s Affirmation in Opposition (M-72379 and M-72380)
Filed Papers: Claim
With respect to the trial of the claim herein, originally scheduled to be
conducted at Orleans Correctional Facility on October 5, 2006, there are five
motions before the Court. The trial was adjourned sine die, and I now
address each motion separately.
The claim herein alleges assault and battery upon the Claimant by six named
correction officers on October 13, 2001 at the Albion Correctional Facility
In Motion No. M-72042, Claimant seeks the production of certain photographs
taken of her by Correction Officer Leslie after the alleged assault. The
Defendant has agreed to produce said photographs at the trial of this claim
without the necessity of subpoena, and is directed to do so. Accordingly, this
motion is denied as unnecessary.
In Motion No. M-72043, Claimant seeks the issuance of a subpoena for the
attendance at trial of Michelle Petrino, described as the Bedford Hills
Correctional Facility’s former Office of Mental Hygiene chief, and
Claimant’s primary therapist for over 13 years. The Defendant objects
primarily on logistical grounds because of the distance between Ms.
Petrino’s current assignment at Sing Sing Correctional Facility and
Orleans Correctional Facility, and also on the ground that she was not present
during the underlying incident. Defendant surmises that Claimant is seeking to
compel expert testimony on the infliction of emotional distress. While the
subject has not been addressed in the moving papers at any length, to the extent
that Ms. Petrino has allegedly been a treating therapist for over 13 years, her
testimony may well be probative, irrespective of whether her expert opinion is
sought at trial. I will address the logistical concerns separately below, but
for purposes of this motion, it is granted and the Defendant is directed to make
Ms. Petrino available to testify at the trial without the necessity of
The Defendant, in its responsive papers to the motions noted above, has advised
the Court that it contemplates calling Sgt. Robert W. Schroeder, Sgt. Gary D.
Baugher; Correction Officer Michael G. Cherry and/or Correction Officer F.
Tardibone, all of whom are employed at Albion.
In Motion No. M-72044, Claimant seeks an order requiring that her transport for
trial be a “one-day trip transport order.” The grounds therefor
relate primarily to Claimant’s apprehension at being housed at Albion
during the trial, the location of the alleged assault upon her, as well as the
place of employment for some five named correction officers who allegedly
assaulted her. The means and location of inmate transport is outside the
jurisdiction and power of this Court, and for that reason the motion is denied.
However, I will address the logistical concerns below in a fashion that may well
resolve the issue.
In Motion No. M-72379, Claimant seeks the postponement of her trial for some
sixty days to allow some recent medication changes to “stabilize.”
That application is dated September 24, 2006, and the return date of this motion
was November 15, 2006. To the extent that Claimant seeks a trial date at least
some 60 days subsequent to September 24, 2006, it is granted.
Finally, in Motion No. M-72380, Claimant reiterates her request with respect to
Michelle Petrino and now seeks the testimony of one Dr. Williams, characterized
as the “attendant physician who treated” Claimant upon her arrival
at Bedford Hills Correctional Facility (Bedford). This application provides no
further explanation of the purported testimony of Dr. Williams, other than that
noted above, and it appears to me that Claimant’s medical records, if
offered and admitted into evidence by either party, would speak for themselves
with respect to Claimant’s medical treatment at Bedford. No reason to
require the appearance or testimony of Dr. Williams has been proffered, and
accordingly, this motion is denied.
Given the circumstances extant herein, and the issues raised by Claimant with
respect to her transport, I have decided to reschedule this trial to be
conducted by videoconferencing, with Claimant remaining housed at Bedford for
the purpose of the trial. By so doing, Michelle Petrino may similarly testify by
videoconferencing link at her place of work, and thus neither travel expenses
nor time constraints for her would appear to be implicated. Similarly, the
testimony of the Defendant’s contemplated witnesses may be taken by
videoconferencing link or at the location from which I shall sit and preside
over the trial. The date, time and place of said rescheduled trial will be
provided to the parties under separate cover.
Accordingly, the motions are granted and denied consistent with the