New York State Court of Claims

New York State Court of Claims

MOLEY v. THE STATE OF NEW YORK, #2006-037-024, Claim No. 105084, Motion No. M-72213


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: Geoffrey B. Rossi, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 2, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se Claimant brings a motion to compel the production of documents and for the issuance of a judicial trial subpoena. The following papers were read and considered with respect to this motion:
1. Notice of motion for leave to renew and supporting affidavit of pro se Claimant,

James Moley, sworn to August 3, 2006, with annexed Exhibits A-D;

2. Opposing affirmation of Assistant Attorney General Geoffrey B. Rossi dated

September 21, 2006, with annexed Exhibit A.

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. Claimant styles his motion as a motion for leave to renew his prior motion for subpoenas, motion no. M-71335, which was decided by this Court in May of 2006 (Moley v State of New York, Ct Cl, May 25, 2006, Moriarty, J., Claim No. 105084, Motion No. M-71335, UID # 2006-037-011).[1] His present motion, however, requests the production of certain documents and the issuance of a judicial trial subpoena that were not requested in his prior motion. Because the relief sought is different from the relief requested in Claimant’s prior motion no. M-71335, this motion will be treated as a separate motion and the items requested herein addressed separately.

Request for Medical Records

Claimant alleges that he has requested copies of his medical records and that the Defendant has only partially responded. In support, Claimant attaches to his motion papers a copy of his July 7, 2006 letter to Assistant Attorney General Rossi (Claimant’s Exhibit C), in which he states that he has received copies of his medical records from Wende Correctional Facility (Wende) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), that were not provided by the Defendant. The medical records received directly from Wende are dated from April of 2004 to February of 2006 (see Claimant’s Exhibit C). Claimant fails to allege how these records, dated three, four and five years after the August, 2001 slip and fall, are relevant. Moreover, Claimant does not appear to be requesting a duplicate copy of the records he obtained from Wende, rather he is requesting that the Defendant provide him “with any other material you find related to my claims.” (Claimant’s Exhibit C). Because no party can speculate as to what another party might think is relevant and because this request lacks specificity, is vague and overly broad, Claimant’s motion to compel the Defendant to provide unspecified medical records is denied (see generally Williams v State of New York, Ct Cl, November 1, 2004, Collins, J., Claim No. 108324, Motion No. M-68918, UID # 2004-015-439).

Request for a Judicial Trial Subpoena

Because Claimant is not a person authorized to issue a subpoena, he must seek a court order upon a showing that the testimony requested is material and necessary to the prosecution of the claim (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). Claimant alleges that the trial testimony of civilian cook, Gerald Rutzke, is necessary because according to a log book entry, Mr. Rutzke witnessed his fall. While Mr. Rutzke’s testimony might be relevant, Claimant has failed to establish how it would be necessary. “Something more than mere relevance or materiality must be shown to obtain disclosure from a nonparty witness” (Fraser v Park Newspapers of St. Lawrence, Inc., 257 AD2d 961, 962 [1999]). Claimant must establish that the information the witness possesses is somehow unique and can not be obtained from another source (Jira v Levin-Epstein, 172 AD2d 495 [1991]). Here, Claimant previously moved for and this Court issued subpoenas for the trial testimony of civilian cook Michael Youmens and inmate Andrew Wimberly, who also allegedly witnessed the incident. Claimant makes no attempt to establish how Mr. Rutzke’s testimony would be unique and not merely redundant and cumulative to what the Claimant, Mr. Youmens and Mr. Wimberly will relate at trial. Accordingly, Claimant’s motion for the issuance of a trial subpoena to compel the trial testimony of Gerald Rutzke is denied.[2]

Request for List of Correction Officers

In his prior motion no. M-71335, Claimant requested that Defendant produce a list 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. The Court refused to compel the production of such a list as it was clear from a review of the file that Claimant had never requested this list before serving his prior motion in February of 2006 (see Moley v State of New York, supra). At the time of the earlier motion, however, Defendant agreed to treat Claimant’s motion papers as a request for a list of correction officers. It is this agreement that Claimant now wishes to compel compliance with. Defendant responds that it is unable to provide such a list as no such list currently exists as the facility was not required to maintain such records for more than three years. Claimant first requested this list in February of 2006, well beyond the period the facility was required to maintain them. This Court may not compel a party to produce a document which does not exist (Aquino v State of New York, Ct Cl, March 20, 2006, Hard, J., Claim No. 109513, Motion Nos. M-70503, M-70948, M-71001, UID # 2006-032-022). Claimant’s request to compel the Defendant to produce a list of correction officers assigned to the mess hall or kitchen at Elmira in August, 2001 is denied.

Based on the foregoing, it is hereby

ORDERED, that Claimant’s motion no. M-72213 is denied in its entirety.

October 2, 2006
Buffalo, New York

Judge of the Court of Claims

[1]. This and other unreported Court of Claims decisions may be found on the Court’s website at
[2]. Claimant failed to provide a proposed subpoena for the Court to execute and thus his motion is procedurally defective. The motion was denied, however, on substantive grounds.