4. Affirmation of Assistant Attorney General Joseph F. Romani in opposition
Claimant’s motion to proceed as a poor person and for subpoena of
witnesses dated March 31, 2006.
Filed papers: Claim filed June 20, 2002; Answer filed July 26, 2002.
This is a claim for negligent failure to protect the pro se inmate Claimant
from an attack by other inmates while he was incarcerated at Elmira Correctional
Facility (Elmira). This claim was previously scheduled for trial at a pro se
trial term held by the Court at Elmira on March 29, 2006. Prior to trial,
Claimant brought a motion for trial subpoenas. The Court adjourned the trial,
sine die, without a new date in order to hear Claimant’s motion.
Claimant then brought a second motion for permission to proceed as a poor
By Motion No. M-71444, Claimant seeks permission to proceed as a poor person
pursuant to CPLR § 1101. In his motion papers, Claimant alleges that he is
unable to pay the necessary filing fee or the fees, mileage, and the cost of
serving subpoenas. By order filed July 11, 2002, former Presiding Judge Read
granted Claimant’s request for a reduced filing fee. There are no other
costs or fees required by the Court of Claims to prosecute this claim. In
addition, article 11 of the CPLR does not provide relief from the payment of
witness fees or mileage associated with the issuance of trial subpoenas (see
Burr v State of New York
, Ct Cl, November 20, 2000, Corbett, J., Claim No.
97058, Motion No. M-62603, UID #
affidavit of service does not indicate that the County Attorney received
notification of his motion to proceed as a poor person and Claimant failed to
provide the Court with any information regarding the status of his inmate fund
(see Holmes v State of New York
, Ct Cl, September 9, 2003, Fitzpatrick,
J., Claim No. 101728, UID # 2003-018-252). Accordingly, Claimant’s motion
to proceed as a poor person (M-71444) is denied.
With respect to Claimant’s motion to issue trial subpoenas (M-71343), the
Court is satisfied, and the Defendant does not dispute, that the testimony of
Superintendent James Conway and Captain John Colvin is material and necessary
to the prosecution of this claim. Because Claimant is not an attorney, however,
he may not issue these subpoenas on his own. Claimant is directed to prepare
trial subpoenas and to forward them to the Court upon receipt of this decision
and order. The Court will hold these subpoenas until a new trial date has been
set. At that time, the Court will execute the trial subpoenas and return them to
Claimant for service upon the witnesses.
Procedurally, CPLR 2303 states that subpoenas should be served in the same
manner as a summons. The functional equivalent of a summons in this Court is the
claim which must be served personally or by certified mail, return receipt
requested (see Court of Claims Act § 11 [a]). Because it is inherently
difficult for a pro se inmate to accomplish personal service, the subpoenas
authorized herein may be served on the witnesses by certified mail, return
receipt requested (see Huntley v State of New York, Ct Cl, July 30, 2003,
Scuccimarra, J., Claim No. 106466, Motion No. M-67112, UID # 2003-030-567).
At the time of the incident alleged in the claim, Captain John Colvin was
employed by the New York State Department of Correctional Services (DOCS) at
Elmira. He is currently employed, however, at Five Points Correctional Facility
which is located in Romulus, New York. Because Captain Colvin will be required
to travel from Romulus to Elmira, New York to testify at trial, he is entitled
to the statutory fees provided for in CPLR § 8001. Thus, when Claimant
serves Captain John Colvin with the trial subpoena, he will be required to pay
the statutory witness fee of $15.00, plus travel expenses of $22.08 for the
round trip between Romulus and Elmira ($.23 a mile times the round trip distance
of 96 miles), for a total of $37.08 to be paid by check or money order made
payable to Captain John Colvin.
Similarly, Superintendent James Conway
be required to travel from Attica, New York to Elmira, New York in order to
testify at trial and is entitled to the statutory fees provided for in CPLR
§ 8001. Thus, when Claimant serves Superintendent Conway with the trial
subpoena, he will be required to pay the statutory witness fee of $15.00, plus
travel expenses of $50.60 for the round trip between Attica and Elmira ($.23 a
mile times the round trip distance of 220 miles), for a total of $65.60 to be
paid by check or money order made payable to Superintendent James Conway.
Accordingly, it is hereby
ORDERED, that Claimant’s motion (M- 71343) for trial subpoenas is
granted. Claimant is directed to immediately prepare and forward to the Court
trial subpoenas addressed to Superintendent James Conway and Captain John
Colvin. It is further
ORDERED, that Claimant’s motion (M-71444) to proceed as a poor person is