New York State Court of Claims

New York State Court of Claims

McCAIN v. THE STATE OF NEW YORK, #2006-030-530, Claim No. 110056, Motion No. M-71178


Synopsis



Case Information

UID:
2006-030-530
Claimant(s):
ADRIAN McCAIN
Claimant short name:
McCAIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110056
Motion number(s):

Cross-motion number(s):
M-71178
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ADRIAN McCAIN, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
April 26, 2006
City:
WHITE PLAINS
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Adrian McCain alleges in Claim Number 110056 that on or about July 17, 2003 while in the recreation area of Sing Sing Correctional Facility near ongoing construction on the B-Block roof, a "small concrete rock came down from the roof and hit Claimant on the right side of the head, thus causing injury." [Claim Number 110056, ¶ 2]. He asserts that Defendant's agents negligently failed to protect the inmate Claimant from foreseeable injury by failing to mark off the construction site or otherwise warn of the dangerous condition.

The present motion seeks production of two inmate witnesses, Rodney Transau, DIN # 03-A-1599 and Dwight Thomas, DIN # 02-A-2939 and an unnamed medical consultant. Claimant indicates that the inmate witnesses were “eyewitnesses” present in the yard at the time of the incident, and the medical consultant examined him “within the year 2003 . . . [and] informed claimant verbally that claimant is suffering from (post traumatic stress syndrome) . . .” [Motion for subpoena, Fact # 2, ¶¶2 and 3; Fact # 3, ¶¶ 1 and 2]. He indicates that he cannot provide the name of the medical consultant because he only has a “blacked out” copy of the consultant’s report. Certainly, the copy furnished to the Court is not legible, largely because it is a bad photocopy.

Trial of the matter has not yet been scheduled and, therefore, this application is premature. See Carter v State of New York, UID#2003-028-522, Claim No. 105747, Motion No. M-66194 (Sise, J., March 20, 2003). On that ground alone the motion is denied without prejudice to renewal once the Claimant is notified in writing by the Court that the matter is scheduled for trial.

More substantively, it should be noted that Claimant has not provided sufficient rationale for the issuance of such subpoenas. 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), See Civil Practice Law and Rules §2302 (a) and (b). Proposed subpoenas for the Court’s signature should accompany the motion.

Most importantly, an affidavit indicating why the testimony of each witness is material and necessary to the prosecution of the claim must be included, akin to the pre-trial disclosure standards. See generally Civil Practice Law and Rules §3101. In Price v State of New York, 2004 WL 1631755 (Ct Cl 2004), for example, where it was indicated that the inmate witnesses sought were eyewitnesses to the incident in which Claimant was injured, the Court did not find anything more than relevance by the assertion: insufficient to show that the testimony would be necessary. As that Court stated:
“. . .’[S]omething more than mere relevance or materiality must be shown to obtain disclosure from a nonparty witness’ . . . (citations omitted). To make the necessary showing, the party seeking permission to depose a nonparty inmate should spell out (or provide an affidavit establishing) the anticipated testimony; establish that the information the witness possesses is somehow unique and not merely cumulative to what claimant will relate and/or what is recorded in any documents concerning the incident, and establish that the information cannot be obtained from another source . . . ”
Based on the present application, Claimant has not established how the testimony of these two inmate witnesses is material, relevant or necessary.

With respect to the medical consultant, a subpoena cannot be blindly issued. These are claimant’s medical records, obtainable by him. He should be able to ascertain the name of the individual mentioned, and would also be required to establish materiality, relevance and necessity in any future application.

Accordingly, Claimant’s motion [M-71178] is hereby denied in all respects, without prejudice to a subsequent, adequately supported, motion.

April 26, 2006
WHITE PLAINS, New York

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