New York State Court of Claims

New York State Court of Claims

MOLEY v. THE STATE OF NEW YORK, #2006-037-011, Claim No. 105084, Motion No. M-71335


Case Information

JAMES MOLEY, 79-A-3844
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:
James Moley, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Joseph F. Romani, Esq. and
Geoffrey B. Rossi, Esq.Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
May 25, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se inmate brings a motion for issuance of trial subpoenas. The following were read and considered with respect to Claimant’s motion:
1. Claimant’s notice of motion (M-71335) filed February 28, 2006, and affidavit of pro

se Claimant James Moley sworn to February 23, 2006, with annexed Exhibit;

2. Opposing affirmation of Assistant Attorney General Joseph F. Romani dated March

9, 2006;

3. Unsworn letter from pro se Claimant James Moley dated March 14, 2006;

4. Opposing affirmation of Assistant Attorney General Geoffrey B. Rossi dated April

12, 2006, with annexed Exhibit.

Filed papers: Claim filed October 22, 2001; Answer filed November 21, 2001.

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 [1964]). 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).[2] 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 as unnecessary.

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 reports.

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 # 2005-019-544).

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, denied.

Mike Youmens

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

Dr. Yin

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, unnecessary.

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.

Andrew Wimberly,
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 trial.[5] 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 conferencing.

May 25, 2006
Buffalo, New York

Judge of the Court of Claims

[1]. It is difficult to tell from Claimant’s motion papers if he is seeking the issuance of a trial subpoena duces tecum for the production of these documents at trial or if he is moving pursuant to CPLR 3214 for an order compelling the Defendant to produce these documents. Because Claimant has not provided the Court with a subpoena duces tecum for these records and because it is difficult to understand how these records would be of any use to Claimant if received for the first time at trial, the Court will treat this portion of Claimant’s motion as a request for an order pursuant to CPLR 3214, compelling the Defendant to produce these documents.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s web site at
[3]. See footnote #1.
[4]. The Court has learned that there is no correction officer with a last name of Engridge employed at Elmira or at any other correctional facility within the New York State Department of Correctional Services (DOCS). The Court cannot issue a subpoena to an individual whose identity and location are unknown.
[5]. Because inmate Wimberly will not be removed from his present location in order to testify, the travel expenses for mileage provided for under CPLR 8001(a) will not be necessary.