New York State Court of Claims

New York State Court of Claims

McWILLIAMS v. THE STATE OF NEW YORK, #2006-013-076, Claim No. 106756, Motion Nos. M-72042, M-72043, M-72044, M-72379, M-72380


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-72042, M-72043, M-72044, M-72379, M-72380
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 16, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On November 15, 2006, the following papers were read on Claimant’s motions:

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 Witness List

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 (Albion).

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 subpoena.

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 above.

November 16, 2006
Rochester, New York

Judge of the Court of Claims