New York State Court of Claims

New York State Court of Claims

TAFARI v. THE STATE OF NEW YORK, #2006-036-533, Claim No. 104897, Motion No. M-71604


Correctional Facility inmate’s motion for production of inmate witnesses at trial is denied.

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:
ELIOT SPITZER, ATTORNEY GENERALby Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for the issuance of a subpoena to compel the attendance of three individuals, currently incarcerated in the State correctional system, at the trial of this claim, scheduled for June 22, 2006. Defendant opposes the motion.[1]

In the underlying claim, claimant alleges that he was the victim of an assault by correction officers at Southport Correctional Facility on September 4, 2001. In support of this motion, claimant alleges that the three witnesses whose testimony he seeks to compel were witnesses to the subject event.

CPLR § 2302(b) provides that a subpoena to compel the attendance at trial of an incarcerated inmate must be issued by the court. It has been held that such a subpoena should not be issued absent the demonstration of a “compelling necessity” for the testimony of the inmates whose testimony is sought (Sebastiano v State of New York, 112 Misc 2d 1027 [1981]).

Beyond asserting that the three inmates were eyewitnesses to the subject event, claimant does not address many important factors, such as where these inmates are currently housed; whether they would agree to appear and testify or whether force would be involved in enforcing a subpoena; what such testimony would be; or whether each inmate possesses unique information so that his testimony would be something more than cumulative (see Price v State of New York, 4 Misc 3d 1008[A] [2004]). Such considerations become crucial when one considers the impact that judicially-compelled transportation of inmates around the State could have on legitimate security and fiscal concerns. [2]

Additionally, although this claim was filed in 2001, it does not appear that claimant made any effort, until March of this year when the claim was scheduled for trial, to obtain the testimony of the three sought inmates using disclosure devices, such as depositions (oral or on written questions) or interrogatories, that could have been conducted under court supervision and could have obviated the necessity to request that they be transported to trial (see Price v State of New York, supra). Balancing all of the relevant factors, the relief sought by claimant is not warranted.

Although not addressed by the parties, the court’s file reflects two items that should be addressed. In its response to claimant’s disclosure demands, defendant stated that it had a copy of a videotape of the subject incident which would be made available to the court at trial, and it provided claimant with copies of the Use of Force Report and other documents pertaining to the disciplinary charges that arose from the events at issue herein. Although the court denies claimant’s motion for the issuance of subpoenas, defendant is directed to produce the videotape and any documents in its files pertaining to the subject incident at trial.

May 22, 2006
New York, New York

Judge of the Court of Claims

[1].The court considered the Notice of Motion and Affidavit and the Affirmation in Opposition.
[2].The sole reimbursement available to the State should the court issue a subpoena would be the statutory witness and mileage fees (Matter of State Dept. Of Correctional Services, Otisville Correctional Facility [C.S.E.A. Concerning Salvigan], 142 Misc 2d 380 [Sup Ct, Orange Co, 1989]; CPLR §§ 2303[a], 8001[a]).