New York State Court of Claims

New York State Court of Claims

ENDRES v. THE STATE OF NEW YORK, #2007-015-251, Claim No. 111079, Motion Nos. M-73965, M-73966, M-74196


Motion for the issuance of judicial subpoenas to compel the attendance of two non-party inmates for trial was granted. State was required to pay expenses for transport.

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):
M-73965, M-73966, M-74196
Cross-motion number(s):

Claimant’s attorney:
The DeLorenzo Law Firm, LLPBy: Thomas E. DeLorenzo, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 7, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for the issuance of judicial subpoenas to compel the attendance of two non-party inmates for the purpose of testifying at trial (M-73965; M-73966). One inmate, Frank A. Annunziata, is incarcerated in Bare Hill Correctional Facility and the other inmate, Carl Squitieri, is incarcerated in Cayuga Correctional Facility. Claimant also moves for permission to proceed as a poor person pursuant to CPLR 1101 (M-74196).

Claimant was allegedly injured on February 8, 2005 while incarcerated at Bare Hill Correctional Facility[1]. The amended claim alleges the following:
4. On or about 8th day of February, 2005, one of the claimant's job function[s] was to repair the floor buffers. While the claimant was performing the job duty, the claimant placed the buffer on the repair stand which was made out of wood. The defendant had the duty to keep good and safe repair stands. As the repair stand was not in a good condition, it began to fall. The claimant was trying to stop the buffer and stand from falling. This resulted in severe pain to the claimant in the back, hip, groin and lower back of the hip.
In support of the motion for issuance of the subpoenas, the claimant asserts that the testimony of non-party inmates Carl Squitieri and Frank A. Annunziata is material and necessary to the prosecution of this claim because both individuals were present when the injury occurred and are familiar with the equipment which allegedly caused the injury.

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 [2004]; Sand v Chapin, 246 AD2d 876 [1998]; 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). Defendant does not oppose the issuance of the subpoenas requiring the attendance of these witnesses at trial, apparently conceding that their testimony is material and necessary to the prosecution of the action. However, the defendant does request that any order reflect that the claimant is responsible for the costs associated with producing the witnesses.

The costs associated with transporting a non-party inmate and guarding him or her during transport for a court appearance pursuant to a subpoena are the responsibility of the Department of Correctional Services (Price v State of New York, 4 Misc 3d 1008[A], 2004 NY Slip Op 50772[U]; Matter of State of New York Dept. of Correctional Servs. (C.S.E.A.), 142 Misc 2d 380 [1989]). The party who subpoenas the inmate is responsible only for paying the statutory witness fee and mileage allowance (CPLR 2303; 8001[a]). As stated by the Court in Matter of State of New York Dept. of Correctional Servs. (C.S.E.A.):
"Nowhere does the CPLR make any exception for witness fees for inmates, and it is presumed that the Legislature, in making the law, weighed the potential expense to the State against the 'chilling' effect the imposition of additional costs on private persons would have on the truth-seeking process and opted in favor of an unhampered truth-seeking process. Had the Legislature intended to make an exception to the standard witness fees or impose conditions other than that the subpoena be issued by a court – which procedure already serves to eliminate frivolous requests and unnecessary expense – it certainly could and would have done so" (142 Misc 2d at 381 [citations omitted]).
Accordingly, the Court will not require payment for the costs of producing the inmates

for trial other than payment of the statutory witness fees which shall be payable to the respective inmates, as well as mileage fees, which shall be payable to the New York State Department of Correctional Services.

Claimant's counsel has not provided the proposed subpoenas to be so ordered by the Court and, therefore, the subpoenas should be submitted in as timely a manner as possible given the pending trial of this matter.

With regard to claimant's application for poor person status, CPLR 1101(a) requires that the moving party shall file an affidavit setting forth the following:
"the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses."
As noted by defense counsel the claimant herein failed to set forth sufficient facts to support the application.

For the foregoing reasons, the claimant's motions (M-73965; M-73966) for the issuance of judicial subpoenas to compel the attendance of Carl Squitieri and Frank A. Annunziata on the date of trial is granted. Claimant's motion for poor person status (M-74196) is denied.

December 7, 2007
Saratoga Springs, New York

Judge of the Court of Claims

  1. The Court considered the following papers: Notice of motion (M-73965) dated September 13, 2007;
  1. Affidavit of Paul E. DeLorenzo (M-73965) sworn to September 13, 2007;
  2. Notice of motion (M-73966) dated September 13, 2007;
  3. Affidavit of Paul E. DeLorenzo (M-73966) sworn to September 13, 2007;
  4. Affirmation in opposition (M-73965, M-73966) of Michele M. Walls dated September 20, 2007;
  5. Notice of motion (M-74196) dated November 9, 2007;
  6. Affidavit of Bruce H. Endres sworn to October 30, 2007;
  7. Certificate of Attorney Thomas E. DeLorenzo dated November 9, 2007;
  8. Affirmation in opposition (M-74196) of Michele M. Walls dated November 16, 2007.

[1]. The claimant is now released and the trial of this matter is scheduled for December 20, 2007.