4. Opposing affirmation of Assistant Attorney General Geoffrey B. Rossi dated
12, 2006, with annexed Exhibit.
Filed papers: Claim filed October 22, 2001; Answer filed November 21,
This is a claim for personal injuries arising out of an incident which occurred
at Elmira Correctional Facility (Elmira) on August 10, 2001, when the inmate
Claimant allegedly slipped and fell in the loading dock area of the mess hall.
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, in order to
hear Claimant’s motion.
Because Claimant is not a person authorized to issue subpoenas, he must seek a
Court order permitting the issuance of subpoenas upon proper motion (Chopak v
Marcus, 22 AD2d 825 ). Here, Claimant has brought a motion for the
production of certain documents and seeks the issuance of subpoenas directing
various witnesses to appear and testify at the rescheduled trial. The separate
aspects of Claimant’s motion will be addressed seriatim.
Request for List of Correction Officers
Claimant requests that the Defendant produce a list of the names of the
Correction Officers who were assigned to the mess hall or kitchen at Elmira on
August 10, 2001, the date of the alleged incident. A review of the file,
however, reveals that Claimant has never served the Defendant with a proper
demand for such a list. A motion to compel discovery pursuant to CPLR 3124 is
appropriate only after a party has served a proper discovery demand and the
other party has failed to respond or comply with the demand (Williams v State
of New York
, Ct Cl, September 6, 2002, Lebous, J., Claim No. 106218, Motion
Nos. M-65548, M-65549, UID # 2002-019-565).
Here, Defendant has not yet been asked to produce this list, and consequently
Claimant’s motion to compel is inappropriate, premature and must be
denied. Notwithstanding, Defendant has agreed to treat this portion of
Claimant’s motion as a discovery demand and has contacted Elmira to
provide the names requested.
Request for List of Civilians Assigned to the Mess Hall or Kitchen
Claimant requests that Defendant produce a list of civilians assigned to the
mess hall or kitchen on August 10, 2001. The file fails to reveal the existence
of any proper discovery demand having been served on the Defendant for such a
list. Once again, Claimant’s motion in this regard is inappropriate,
premature and must be denied. Defendant has agreed, however, to treat this
portion of Claimant’s motion as a discovery demand and has contacted
Elmira for a list of civilians employed on the date of the incident.
Request for Medical Records
Claimant requests that Defendant make available all medical records regarding
the treatment he received for his injuries at Elmira or at Arnot Ogden Medical
Center. Claimant alleges that he previously requested copies of these documents
and attaches a subpoena duces tecum addressed to the Arnot Ogden Medical Center.
Defendant has attached to its opposition papers copies of Claimant’s
Ambulatory Health Records, a report from Arnot Ogden Medical Center, a Medilabs
report and a radiology report from St. Lawrence Radiology. Because Defendant has
provided the requested medical records and has agreed that these records may be
marked into evidence at trial, Claimant’s motion in this regard is denied
Request for Incident Reports
Claimant requests that Defendant make available all documents relating to the
incident. Nothing in the file indicates that Claimant has previously served a
demand on Defendant for these reports. Claimant’s motion in this regard
is, therefore, inappropriate, premature and must be denied. Defendant has
attached to its opposition papers, however, a copy of an Inmate Injury Report
and has agreed to contact Elmira to determine the existence of any other
Request for Inmate Work Records
Claimant requests that Defendant make available his inmate work records. Once
again, in the absence of a prior discovery demand for these records, the Court
is unable to issue an order pursuant to CPLR 3124 compelling Defendant to
produce these records. In addition, Defendant takes the position that
Claimant’s work related records are immaterial, irrelevant and have no
probative value. To avoid a future motion and the possible necessity of issuing
a trial subpoena, the Court requests Defendant to make available at the time of
trial a copy of Claimant’s inmate work record for August 10, 2001 only.
Defendant may challenge its admissibility at trial.
Requests for Judicial Trial Subpoenas
Claimant seeks judicial subpoenas to compel the testimony at trial of certain
alleged witnesses. It is Claimant’s burden to establish how the proposed
testimony of each of the requested witnesses is material and necessary to the
prosecution of his claim (see Smith v State of New York, Ct Cl, June 24,
2005, Lebous, J., Claim No. 101701-A, Motion Nos. M-70205, M-70206, UID #
Correction Officer Wood
According to Claimant, Correction Officer (CO) Wood was the first officer to be
advised of the incident and who had Claimant taken over to the facility
hospital. Claimant does not allege that CO Wood witnessed the incident and
Claimant’s Ambulatory Health Records establish that he was seen at the
facility hospital after the incident. Because Claimant has failed to
establish that CO Wood could offer any material or necessary testimony, his
request for a trial subpoena is denied.
Correction Officer Engridge
Claimant alleges that CO Engridge was in charge of the mess hall/kitchen and
was aware that all incidents were to be reported to the first officer in charge.
Claimant does not allege that CO Engridge witnessed the incident and has
otherwise failed to establish how his trial testimony would be relevant and
necessary. Claimant’s request for a trial subpoena is, therefore,
Claimant alleges that civilian cook, Mike Youmens, actually witnessed the
incident on August 10, 2001. His testimony could provide the Court with valuable
information regarding the happening of the incident and the condition of the
floor, and Defendant offers no objection to his testimony. Therefore, once a new
trial date has been set, the Court will execute a subpoena addressed to Mike
Youmens and return it to Claimant for service.
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 subpoena to be
served on Mike Youmens may be served 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).
The Court has further learned that Mr. Youmens is still employed at Elmira.
Because this is the same facility where the trial of this matter will be held,
no mileage fee for travel is authorized and the Court will waive the $15.00
appearance fee provided for by CPLR § 8001(a).
Physician’s Assistant Fowler
Claimant alleges that the testimony of Physician’s Assistant (PA) Fowler
and Dr. Yin will confirm that he did receive medical treatment on August 10,
2001. The medical records, which Defendant has agreed to stipulate into
evidence, will establish the extent of his treatment. Some medical testimony,
however, could be helpful to the Court in understanding the extent of
Claimant’s injuries. Commendably, Defendant has agreed to produce either
P.A. Fowler or Dr. Yin to testify at trial, without the necessity of a subpoena.
Considering that P.A. Fowler’s name appears on the Claimant’s
Ambulatory Health Record for August 10, 2001, the Court would prefer that
Defendant produce P.A. Fowler to testify. In this event, additional trial
testimony from Dr.Yin would be repetitive and cumulative and is, therefore,
Specialist from Arnot Ogden Medical Center
Claimant alleges that this unnamed specialist will testify as to the treatment
he received at the Arnot Ogden Medical Center. This proposed testimony, however,
can be established by the admission into evidence of the report from this
medical center. Trial testimony from an unnamed specialist would be neither
material nor necessary.
department identification number (DIN) 91B0130
Claimant alleges that inmate Wimberly witnessed the incident and attaches to
his papers an affidavit from Mr. Wimberly as to what he was doing at the time of
the incident and what he witnessed. The Court is satisfied that his testimony
would be material and necessary, and Defendant has offered no objection to his
testimony. Mr. Wimberly is currently incarcerated at Shawangunk Correctional
Facility in Wallkill, New York. The Court will, therefore, grant
Claimant’s request for the production of inmate Wimberly at trial, subject
to the following conditions. In lieu of inmate Wimberly’s personal
appearance at trial, the Court will order his testimony be taken during trial by
live video conference (see Dickens v State of New York
, Ct Cl, October 6,
2004, Lebous, J., Claim No. 100119, Motion No. M-69056, UID # 2004-019-582).To
help defray the cost of setting up this video conferencing, Claimant is directed
to pay by check or money order the $15.00 statutory witness fee directly to the
Department of Correctional Services (DOCS) in advance of
If this payment is made by the
Claimant, then the State will ensure that inmate Wimberly is produced via video
conference at the rescheduled trial.
Based on the foregoing, Claimant’s motion M-71335 is granted in part and
denied in part in accordance with the following:
ORDERED, that Claimant’s motion to compel the production of documents is
denied in its entirety, and it is further
ORDERED, that Claimant’s motion for the issuance of trial subpoenas will
be granted in part. The Court will issue a subpoena directed to civilian Mike
Youmens, and the State will produce inmate Andrew Wimberly to testify via video