New York State Court of Claims

New York State Court of Claims

TAFARI v. THE STATE OF NEW YORK, #2006-037-015, Claim No. 106448, Motion No. M-71925


Synopsis



Case Information

UID:
2006-037-015
Claimant(s):
INJAH TAFARI, 89-A-4807
Claimant short name:
TAFARI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106448
Motion number(s):
M-71925
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Injah Tafari, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Geoffrey B. Rossi, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 5, 2006
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Pro se Claimant brings motion no. M-71925 for issuance of judicial trial subpoenas. The following were read and filed with respect to Claimant’s motion:
1. Claimant’s notice of motion filed June 23, 2006, and affidavit of pro se Claimant

Injah Tafari sworn to June 14, 2006;

2. Affirmation in Opposition of Assistant Attorney General Geoffrey B. Rossi dated

June 30, 2006.


Filed papers: Claim filed July 31, 2002; Answer filed September 9, 2002; Claimant’s First Set of Interrogatories and Request for Production of Documents filed September 16, 2002; Defendant’s Reply to First Set of Interrogatories and Request for Production of Documents filed November 29, 2002.


This is a claim for personal injuries arising out of an incident which occurred on June 3, 2002, when the Claimant was allegedly assaulted by personnel of the Department of Correctional Services (DOCS) as he was being transported from Southport Correctional Facility (Southport) to Green Haven Correctional Facility (Green Haven). This claim is presently scheduled for trial at a pro se trial term to be held at Elmira Correctional Facility on July 13, 2006. Claimant now brings this motion for issuance of trial subpoenas.

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]), and satisfy the Court that the testimony or documents sought are material and relevant to the prosecution of this claim. Here, Claimant seeks the issuance of subpoenas to compel the trial testimony of Terry Whedon, R.N. of Southport and Sergeant Wilson of Green Haven, and further seeks a subpoena duces tecum to compel the production of certain documents at trial.

Claimant alleges in his affidavit attached to the moving papers that the trial testimony of Nurse Whedon is material and necessary because she observed Claimant before he was dressed and escorted to the van for transport from Southport to Green Haven, and thus could testify that he did not have injuries when transported. Claimant further alleges that the trial testimony of Sergeant Wilson is material and necessary because he observed Claimant upon his arrival at Green Haven and could testify as to his injuries upon arrival. Nowhere in his affidavit, however, does Claimant allege that either Nurse Whedon or Sergeant Wilson witnessed the alleged assault upon him. Presumably the evidence Claimant is seeking to establish could be obtained from his medical records. Without any pretrial discovery by way of depositions or interrogatories, Claimant has no way of knowing what either proposed witness actually saw or remembers. A subpoena may not be used for the purpose of discovery or to ascertain the existence of evidence (Matter of Terry D., 81 NY2d 1042 [1993]). Moreover, according to the opposing affirmation of Assistant Attorney General Geoffrey B. Rossi, Terry Whedon is no longer employed by the Department of Correctional Services (DOCS), and thus no longer under Defendant’s control. Claimant’s motion for subpoenas to compel the trial testimony of Nurse Whedon and Sergeant Wilson are denied.

Claimant also requests the production of certain documents at trial. Most, if not all, of the documents Claimant seeks for trial were previously requested by Claimant’s First Set of Interrogatories and Request for Production of Documents filed September 16, 2002. In Defendant’s Reply to First Set of Interrogatories and Request for Production of Documents filed November 29, 2002, Defendant advised Claimant that the documents requested did not exist, were objectionable on the grounds of relevancy, or were available upon prepayment of a photocopying charge of $.25 a page. If Claimant was dissatisfied with any of Defendant’s responses he could have made a motion at that time to compel discovery. He chose not to move against Defendant’s responses or to prepay the reasonable photocopying charges requested by Defendant in its reply to Claimant’s demands. There is no general provision which requires the State to pay the litigation expenses of claims brought against it and Civil Rights Law §§ 79 (3) and 79-a (3) provide that the State shall not be liable for any expenses relating to inmate litigation (see Shell v State of New York, 307 AD2d 761 [2003]); Gittens v State of New York, 175 AD2d 530 [1991]). This Court will not issue a subpoena duces tecum for the production at trial of documents which do not exist, are objectionable, or could have been obtained by Claimant years ago by simply prepaying the reasonable photocopying charges requested. Claimant’s motion for the issuance of a subpoena duces tecum to compel the production of documents at trial is denied. Notwithstanding, it is requested that Defendant once again determine the availability of the documents requested by Claimant in his moving papers and have a copy in its file if found to be available. At trial Claimant will be allowed to view any document Defendant has in its possession which is material and relevant to Claimant’s claim. Objections to relevancy are reserved for trial.

Finally, it must be noted that Claimant’s motion is procedurally defective as Claimant failed to provide the Court with any proposed subpoenas (see Johnson v State of New York, Ct Cl, August 4, 2004, Scuccimarra, J., Claim No. 105034, Motion No. M-68817, UID #2004-030-563).[1] Moreover, Claimant failed to give Defendant timely notice of this motion. Pursuant to CPLR 2214 (b), a notice of motion and accompanying affidavit are to be served at least eight days before the motion is heard. According to the opposing affirmation of Assistant Attorney General Geoffrey B. Rossi, as of June 28, 2006, five days before the return date of this motion, the State had not been served with a copy of Claimant’s moving papers.

Based on the foregoing, it is hereby

ORDERED, that Claimant’s motion no. M-71925 for the issuance of trial subpoenas is denied.


July 5, 2006
Buffalo, New York

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




[1]. This and other unreported Court of Claims decisions may be found on the Court’s web site at www.nyscourtofclaims,state.ny.us.