New York State Court of Claims

New York State Court of Claims

PORTER v. THE STATE OF NEW YORK, #2006-030-582, Claim No. 107790, Motion No. M-72419


Pro se inmate’s motion for issuance of trial subpoena to produce inmate witness granted. Affidavit in support adequately shows how the testimony would material and necessary - not just relevant. Sole reimbursement available to the State for production of inmate witness once subpoena served on facility Superintendent would be statutory witness and mileage fees, not transportation costs, given that inmates are regularly transported between correctional facilities in any event.

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):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
November 22, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 4 were read on Claimant’s motion for the issuance of a subpoena ad testificandum pursuant to Civil Practice Law and Rules §2302(b) for the production of inmate Jabbar Collins [DIN #95-A-2646] believed to be currently incarcerated at Green Haven Correctional Facility:
1-3 Notice of Motion; untitled Affidavit in Support of Motion by Allen Porter, Claimant sworn to October 13, 2006; prior Affidavit in Support sworn to July 21, 2006 with attached proposed subpoena

Allen Porter alleges in his Claim that he suffered injury to a toe on his right foot as he walked through the west recreational yard at Green Haven Correctional Facility on September 26, 2002 because Defendant’s agents there allowed a dangerous condition to exist in the form of a jagged metal pole protruding from the ground. This matter had originally been scheduled for trial on August 25, 2006, but due to some concerns as to whether correspondence directed to Claimant had been timely received since the address it was sent to was incorrect, the Court granted Claimant’s request for an adjournment of the trial, and to give him an opportunity to make this motion.

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. Pursuant to this Court’s instructions, [see Letter to Claimant dated August 1, 2006], Claimant has brought this motion seeking the issuance of one (1) trial subpoena directing production of an inmate witness, Jabbar Collins [DIN #95-A-2646].

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, 4 Misc 3d 1008(A)(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 non-party witness’ . . . (citations omitted). To make the necessary showing, the party seeking permission to depose a non-party 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 . . . ”
In the present motion, Claimant states that Mr. Collins’ testimony would “. . . substantiate crucial aspects of Claimant’s case. Namely, Collins will testify to the following facts: 1) The existence and obscured position in which the dangerous pole was located, 2) His alerting corrections officers to the existence of the danger, 3) The general description of the dangerous object; such as its length, width, and jaggedness, and 4) The length of time in which the dangerous object remained in the area where the injury occured (sic).” Based on the present application, clearly Mr. Collins could provide material and relevant information as to notice or constructive notice and the conditions in the west recreational yard. As to necessity, whether such information is cumulative or could be established by other means, has not been addressed in any opposition or objection by Defendant, thus Claimant’s assertions as to necessity are the only argument of record. Claimant has satisfactorily established that the testimony of the inmate witness, Jabbar Collins, [DIN #95-A-2646] is material, relevant and necessary.

Procedurally, the witness allowed may be subpoenaed “in such manner as the court . . . directs, if service is impracticable under . . . [other sections].” Civil Practice Law and Rules §308(5) . This provision is appropriately applied in a case such as this one, involving an incarcerated claimant who wants to subpoena a natural person. See e.g. Onorato v Scully, 170 AD2d 803 (3d Dept 1991); Hanson v Coughlin, 103 AD2d 949 (3d Dept 1984); Davis v Coughlin, 96 AD2d 682 (3d Dept 1983). Accordingly, the subpoena authorized herein may be served by certified mail, return receipt requested, rather than personally.

Additionally, the sole reimbursement available to the State upon issuance of the subpoena would be statutory witness and mileage fees.[1] See Tafari v State of New York, UID #2006-036-533, Claim No. 104897, Motion No. M-71604 (Schweitzer, J., May 22, 2006); citing Matter of State Dept. of Correctional Services, Otisville Correctional Facilty [C.S.E.A. Concerning Salvagin], 142 Misc 2d 380 (Sup Ct, Orange County, 1989); Civil Practice Law and Rules §§2303(a); 8001(a). This only makes sense as a practical matter because inmates in State custody are transported between correctional facilities all the time, using departmental vans and regularly assigned correctional personnel to monitor the transport. When an inmate must be produced at a location other than a correctional facility, however, the concerns related to the cost of transport and security are properly addressed.[2]

The proposed subpoena Mr. Porter prepared in early August 2006 is not adequate. Once the trial date is set, Claimant should prepare judicial subpoenas directed to the Superintendent at whichever facility the inmate witness is located at, directing the production of the inmate at Sing Sing Correctional Facility for the date of trial[3], and submit the subpoena to chambers for approval and signature by the Court. If acceptable, the Court will sign the subpoena and return it to the Claimant who may then serve it by certified mail, return receipt requested. Claimant should include the statutory witness and mileage fee required by Civil Practice Law and Rules §8001(a) with the subpoena he serves, payable to the Department of Correctional Services.

Accordingly, Claimant’s motion for the issuance of a subpoena [M-72419] is hereby granted as set forth above.

November 22, 2006
White Plains, New York

Judge of the Court of Claims

[1]. Under Civil Practice Law and Rules §8001(a), the attendance fee is $15.00 per day, and the travel expense fee is twenty-three cents per mile for each mile to the place of attendance from the place where the witness was served.
[2]. When a Claimant has been granted poor person status in accordance with Civil Practice Law and Rules Article 11, the provisions of Civil Rights Law §79(3)(b) apply, making the expenses of transportation and security a State charge. Without such status, the Defendant is generally directed to tell Claimant in writing what those costs would be, and Claimant is then either directed to remit same prior to such movement of the requested inmate witness, or the figure is noted as a lien to be paid out of any recovery.
[3]. The Court does not address the possibility of using video conferencing technology to obtain Mr. Collins’ testimony through that mechanism, rather than a personal appearance at the place of trial. See e.g. Moley v State of New York, UID #2006-037-011, Claim No. 105084, Motion No. M-71335 (Moriarty, J., May 25, 2006). It is incumbent upon Defendant to advise whether the correctional facilities at issue have video technology available, and to suggest such an alternative by taking a position on a motion brought before the Court.