AMAKER v. THE STATE OF NEW YORK, #2007-015-215, Claim No. 110623, Motion No.
Claimant's motion for court-ordered subpoena of non-party inmate and to compel
discovery was granted.
ANTHONY D. AMAKER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Anthony Amaker, Pro Se
Honorable Andrew M. Cuomo, Attorney General
Geoffrey B. Rossi,
EsquireAssistant Attorney General
July 16, 2007
See also (multicaptioned
Claimant, an inmate proceeding pro se, moves for the issuance of a judicial
subpoena to compel the attendance of a non-party inmate to testify at trial and
for an order compelling discovery. Claimant seeks to recover for damage to and
loss of personal property incidental to his confinement in the special housing
unit at Great Meadow Correctional Facility on October 6, 2004 and his subsequent
transfer to Southport Correctional Facility on November 4, 2004. In addition to
the items of personal property he claims were lost, the claimant alleges that on
November 4, 2004 Correction Officer Huffer threw his typewriter across the
C-Block basement, breaking it. Attached to the claim filed on March 11, 2005 is
an affidavit from Tyrone Pallin, an inmate, in which he states that on November
4, 2004 at approximately 11:00 a.m. Correction Officer Huffer threw the
claimant's typewriter across the C-Block basement and that this officer failed
to inventory the bags of the inmates' personal property after retrieving their
coats and boots.
Pro se litigants are not included among those who are authorized to issue a
subpoena and a judicial subpoena is necessary to compel the attendance of a
person confined in a penitentiary or jail (CPLR 2302 [a] and [b]) (Moley v
State of New York
, Ct Cl, October 2, 2006 [Claim No. 105084, Motion No.
M-72213, UID # 2006-037-024] Moriarty, J.,
). To obtain a judicial subpoena
compelling the attendance of a non-party witness at trial it must be shown that
the anticipated testimony is both material and necessary to the prosecution of
the action (Cerasaro v Cerasaro
, 9 AD3d 663 ; Sand v Chapin
246 AD2d 876 ; Porter v State of New York
, Ct Cl, November 22,
2006 [Claim No. 107790, Motion No. M-72419, UID # 2006-030-582] Scuccimarra,
J., unreported). The necessity requirement has been interpreted to include a
showing that the information sought cannot be obtained from other sources or is
somehow unique and not merely cumulative (Cerasaro v Cerasaro
; Sand v Chapin, supra
; Fraser v Park Newspapers of
, 257 AD2d 961, 962 ; Price v State of New York
Misc 3d 1008[A][Ct Cl 2004]). Here, the claimant sufficiently established that
the testimony of inmate Pallin is material and necessary for trial. Mr. Pallin
was allegedly an eyewitness to the incident in which Correction Officer Huffer
allegedly threw the claimant's typewriter as confirmed in his affidavit
submitted with the claim. It also appears that, other than the correction
officers present, Mr. Pallin is the only other witness whose identity is known
and his testimony may well be necessary to support the claimant's allegations.
Accordingly, the Court finds that the issuance of a judicial subpoena compelling
the attendance of Tyrone Pallin at the trial of this action is warranted.
The proposed subpoena submitted with the claimant's motion is not in proper
form. Once a trial date is set, the defendant is directed to notify the
claimant of the facility in which Mr. Pallin is confined and claimant should
prepare a judicial subpoena directed to the Superintendent thereof requiring the
production of this inmate at Great Meadow Correctional Facility for trial. The
subpoena should be forwarded to the Chambers of the undersigned (located at 65
So. Broadway, Rm. 220, Saratoga Springs, New York 12866) to be so ordered.
The so ordered subpoena will be returned to the claimant who may serve the
Superintendent by certified mail, return receipt requested, pursuant to CPLR
2303(a) and 308(5) (Porter v State of New York
; Brown v
State of New York
, Ct Cl, November 21, 2006 [Claim 108217, Motion No.
M-72326, UID # 2006-044-516] Schaewe, J., unreported ). Pursuant to CPLR
2303(a) and 8001(a) the subpoena must be served with the required witness fee
which shall be payable to Mr. Pallin as well as mileage fees payable to the New
York State Department of Correctional Services
Claimant served the defendant with a notice for discovery and inspection on
January 24, 2007 in which the following items of discovery were demanded:
(1) the full and complete copy of the Investigative Report pursuant to Title 7
NYCRR sec. 1700.9
(2) all I-64 made between November 7, 2004 to November 17, 2005;
(3) Any and all inmate disposal forms made out in the month of November of 2004;
(4) Inventory sheet or it[s] equivalent for items placed in the prisoners
(sic) storage bin in November 2004;
(5) copy of the B-block log book entry for November 7, November 14, 2004 and any
other day acknowledging which officer escorted and brought the claimant to the
draft room and back to his cell. Further dates may include November 6, November
22, and 24, 2004;
(6) Names of all officer[s] responsible for handling the bins in B-block and
(7) A copy of directive ¶ 4917 on transfer of inmate's personal property.
On March 10, 2007 claimant sent to the defendant a written request for a
response to this discovery demand in a good faith attempt to obtain the
discovery sought without the need for judicial intervention. The attempt failed
and it was only after the instant motion was filed that the defendant finally
provided a response dated May 11, 2007. Defendant objected to item number "1"
as "unclear", to items numbered "2", "3", and "6" as overly broad, and indicated
that the inventory sheet demanded in item number "4" is not known to exist.
With respect to the demands numbered "5" and "7", the defendant indicated that
the requested discovery will be provided at the cost of 25 cents per page but
did not provide the total charge for these copies.
CPLR 3101 provides for the disclosure of all items "material and necessary in
the prosecution or defense of an action". The Court of Appeals has interpreted
these words liberally to require the disclosure "of any facts bearing on the
controversy which will assist preparation for trial by sharpening the issues and
reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21
NY2d 403, 406 ). CPLR 3122 requires that a party who objects to
disclosure state with "reasonable particularity" the reasons for each objection
within twenty days of service of a notice of discovery. The defendant's
objections to claimant's notice of discovery were raised for the first time in
its response, which was served approximately four months after the service of
the claimant's notice. "The defendants' failure to challenge the [claimant's]
notice of discovery within the time prescribed foreclosed inquiry into the
propriety of the information sought except with regard to requests that are
privileged under CPLR 3101, or as to requests which are palpably improper"
(Fausto v City of New York, 17 AD3d 520, 522 ; see also,
Coville v Ryder Truck Rental, Inc., 30 AD3d 744 ; McMahon v
Aviette Agency, 301 AD2d 820 ). The adequacy of the defendant's
response to the claimant's notice of discovery will be gauged by this
With respect to demand number "1" consisting of the demand for "a complete
copy of the Investigative Report pursuant to Title 7 NYCRR sec. 1700.9", the
demand is neither palpably improper nor privileged and the defendant's response
that it is unclear is incorrect. Part 1700 of the Official Compilation of
Codes, Rules and Regulations of the State of New York (7 NYCRR part 1700)
provides the procedure by which inmates may file claims to recover the value of
personal property which has been lost, damaged or destroyed while under the
custody of the Department of Correctional Services. Toward this end "[t]he
facility in which the inmate is housed at the time the claim is filed is
responsible for investigating and processing an inmate claim" (7 NYCRR §
1700.5 [a]). In the event an inmate is transferred, as is the case here, "the
facility in which the loss occurred must cooperate with the processing facility
and provide investigative assistance as requested" (7 NYCRR § 1700.5[b]).
The completion of a "claim investigation report" is required (7 NYCRR §
1700.9) and the investigator is charged with the responsibility to "thoroughly
and impartially examine the inmate's assertions" (7 NYCRR § 1700.9 [a]).
Thus, contrary to the defendant's objection, the demand for the investigative
report completed pursuant to "Title 7 NYCRR sec. 1700.9" is neither unclear nor
palpably improper. Assuming such a report exists, it shall be provided.
Demands numbered "2" and "3" are not limited to the claimant's claim and are
palpably improper. Demand number "6" is also palpably improper in that it is
not limited to information regarding the time and place of claimant's alleged
The defendant has adequately responded to demand number "4" indicating that no
such inventory sheets exist.
The defendant has agreed to provide documents responsive to claimant's demands
numbered "5" and "7" at the cost of 25 cents per page. The State is not liable
for expenses relating to litigation and may therefore require pre-payment of the
reasonable cost of photocopying, particularly where, as here, poor person status
has not been granted (Civil Rights Law §§ 79  and 79-a ;
Shell v State of New York, 307 AD2d 761 ; Gittens v State of New
York, 175 AD2d 530 ; Johnson v State of New York, Ct Cl, June
30, 2006 [Claim Nos. 106601, 106179, 107011, 107138, 106508, 106878, Motion
Nos. M-71826, M-71857, M-71858, M-71859, M-71861, M-71862, UID # 2006-037-013]
Moriarty, J., unreported ). Accordingly, the defendant is directed to provide
the claimant with a statement of the total cost of photocopying the documents
requested in demands "5" and "7" within fifteen days of the date this order is
filed. In addition, the defendant is directed to make the documents demanded in
items numbered "5" and "7" available to the claimant for his review at the time
For the foregoing reasons, the claimant's motion for the issuance of a judicial
subpoena to compel the attendance of Tyrone Pallin on the date of trial is
granted in accordance with this decision and order and the defendant is ORDERED
to provide the claimant with the name and address of the facility in which Mr.
Pallin is confined within fifteen days of the date the parties are notified of a
date for trial, and it is further
ORDERED that the claimant's motion to compel discovery is granted to the extent
that the defendant is directed to provide a response to claimant's demand
numbered "1" within thirty days of the date this order is filed, and it is
ORDERED that the defendant is directed to provide the claimant with a statement
of the cost of providing copies in response to claimant's demands numbered "5"
and "7" set forth above within fifteen days of the date this order is filed.
July 16, 2007
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
Notice of motion dated March 14, 2007;
Affidavit of Anthony D. Amaker sworn to March 16, 2007 with exhibits;
Affirmation of Geoffrey B. Rossi dated May 11, 2007;
Affidavit of Anthony Amaker sworn to May 28, 2007 with exhibits.
. CPLR 8001(a) provides in pertinent part
that "[a]ny person whose attendance is compelled by a subpoena, whether or not
actual testimony is taken, shall receive for each day's attendance fifteen
dollars for attendance fees and twenty-three cents as travel expenses for each
mile to the place of attendance from the place where he or she was served, and
return. There shall be no mileage fee for travel wholly within a city".