2. Opposing affirmation of Assistant Attorney General Geoffrey B. Rossi
September 21, 2006, with annexed Exhibit A.
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.
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 #
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 #
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
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,
., 257 AD2d 961, 962 ). 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 ).
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
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