New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-044-516, Claim No. 108217, Motion No. M-72326


Claimant’s motion for issuance of subpoenas ad testificandum granted for correction officer who investigated the assault and correction officer who was on duty in security booth at location of assault

Case Information

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:
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 21, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for several subpoenas duces tecum to compel the production of certain records and a videotape, as well as to compel the testimony of Sergeant J. Smith, A. Bartlett, Sergeant Charles, and Correction Officer John S. Wood, employees of defendant State of New York (“defendant”). Defendant opposes the motion.

Claimant seeks to recover for personal injuries received when he was allegedly attacked from behind by an unknown inmate assailant at Elmira Correctional Facility (“Elmira”). Immediately after the attack, Sergeant J. Smith recommended involuntary protective custody, and an involuntary protective custody hearing was held shortly thereafter. Hearing Officer A. Bartlett found that because claimant had not been involved in any fights in several years, did not request protective custody, and the assailant did not use a weapon, claimant would “be safe doing his ‘regular programs’. ” Claimant signed the Hearing Determination Form, acknowledging his statement that he did not want to be placed in protective custody and he was released back into the general population.

Two days after his return to general population, claimant was again attacked by an unknown inmate and received a laceration to the face requiring thirty-four (34) stitches. Claimant alleges that defendant's negligent denial of involuntary protective custody status and defendant's negligent security and supervision after claimant had been attacked once, resulted in his physical disfigurement and psychological trauma.

Claimant argues that in order to sustain his cause of action at trial, he will require videotapes, area logbooks, gallery logbooks, facility clinic logbooks, medical records and unusual incident reports which relate to events that took place between the first attack (May 2, 2003) and the second attack (May 16, 2003). Claimant contends that Smith recommended claimant’s placement into protective custody and Bartlett conducted the involuntary protective custody hearing and, therefore, their respective testimony is material and necessary.

A review of the file indicates that claimant has not served defendant with any demands for production of the documents or videotape and to the extent that this motion is to compel such production, it is premature (Williams v State of New York, Ct Cl, Sept. 6, 2002, Lebous, J., Claim No. 106218, Motion Nos. M-65548, M-65549 [UID # 2002-019-565]). Nevertheless, defendant has agreed to provide copies of the requested documents and reproduction of the videotape which are in its possession upon payment of the designated fees of $0.25 per page and $5.00 for the videotape (see Moley v State of New York, Ct Cl, May 25, 2006, Moriarty III, J., Claim No. 105084, Motion No. M-71335 [UID # 2006-037-011]).[1]

In order to obtain a subpoena for trial testimony, claimant has the burden of establishing “how the proposed testimony of each of the requested witnesses is material and necessary to the prosecution of his claim” (id., at 4). Claimant avers that because Smith recommended protective custody after the initial assault, his testimony is material and necessary. The Court disagrees. Smith did not witness the assault and most likely issued the recommendation as part of Elmira’s standard procedure.[2] Although the recommendation initiated a hearing, ultimately a determination was made that claimant should not be placed into involuntary protective custody. As a result, Smith’s initial recommendation has no evidentiary value. Bartlett, who also did not witness the incident, can be expected to provide testimony that concerns only the protective custody hearing. In essence, claimant would be relitigating the issue of whether he should have been placed in protective custody. The proposed testimony is therefore neither material nor relevant to this action.[3]

Claimant also requests that this Court issue a subpoena for Sergeant Charles who investigated the second assault and Correction Officer Wood who was on duty in the recreation yard security booth. Defendant has not opposed this portion of the motion and apparently concedes that the testimony of Charles and Wood may be material and necessary. Once a trial date is scheduled for this claim, the Court will issue a subpoena, which claimant shall 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). At that time, counsel for defendant shall advise the Court whether Charles and Wood are still employed at Elmira and, if so, payment of the witness appearance fee and mileage shall be waived (see Moley v State of New York, supra; Huntley v State of New York, supra).

Claimant’s motion is granted to the extent that a subpoena ad testificandum will be issued to Sergeant Charles and Correction Officer Wood when this matter is scheduled for trial. The remainder of the motion is denied.

November 21, 2006
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion for subpoenas:

1) Notice of Motion filed September 25, 2006; Affidavit of Everton Brown sworn to September 20, 2006 and attachments.

  1. Affirmation in Opposition of Joseph F. Romani, AAG dated October 3, 2006 and annexed Exhibit A.

Filed papers: Claim filed September 2, 2003; Verified Answer filed October 2, 2003.

[1]. In essence, defendant has treated this portion of claimant’s motion as a demand for discovery. In addition to the documents already made available, defendant has contacted the records department at Elmira to search for the requested logbooks and will inform claimant whether such records exist and if so, the appropriate fee for the respective copies.
[2]. Affirmation of J. Romani, AAG in Opposition, ¶10.
[3]. As defendant notes, Bartlett’s determination speaks for itself.