New York State Court of Claims

New York State Court of Claims

SKINNER v. THE STATE OF NEW YORK, #2006-037-010, Claim No. 106258, Motion Nos. M-71343, M-71444


Synopsis



Case Information

UID:
2006-037-010
Claimant(s):
ROBERT SKINNER
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
SKINNER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106258
Motion number(s):
M-71343, M-71444
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Robert Skinner, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Paul F. Cagino, Esq. and
Joseph F. Romani, Esq.Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
May 12, 2006
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Pro se inmate brings two motions for issuance of judicial subpoenas and for permission to


proceed as a poor person. The following were read and considered with respect to Claimant’s motions.
1. Claimant’s notice of motion for subpoena of witnesses (M- 71343) filed March 1,

2006, and affidavit of pro se Claimant Robert Skinner sworn to February 24, 2006;

2. Affirmation of Assistant Attorney General Paul F. Cagino dated March 6, 2006;

3. Claimant’s notice of motion to proceed as a poor person and to subpoena witnesses

(M-71444) filed March 20, 2006, and affidavit of pro se Claimant Robert Skinner sworn to March 15, 2006;

4. Affirmation of Assistant Attorney General Joseph F. Romani in opposition to

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 person.

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 # 2000-005-572).[2] Finally, Claimant’s 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[3] will 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 denied.



May 12, 2006
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[2]. This and other unreported Court of Claims decisions may be found on the Court’s web site at www.courtofclaims.state.ny.us.
[3]. At the time of the incident alleged in the claim, Superintendent James Conway was the Deputy Superintendent of Security at Attica Correctional Facility (Attica). Today, he is the Superintendent of Attica.