New York State Court of Claims

New York State Court of Claims

DYSTANT v. THE STATE OF NEW YORK, #2007-030-517, Claim No. 108482, Motion No. M-72447


Motion for issuance of trial subpoenas granted. Claimant has made the requisite showing of materiality, relevance and necessity with regard to factual information concerning the medical care received from podiatrist and correctional facility physician. The appearances of the doctors authorized solely as fact witnesses. Claimant not entitled to elicit professional opinions of witnesses. Service of subpoenas by certified mail, return receipt requested authorized. $15.00 appearance fee for a day’s attendance at trial either with the subpoena, or sometime prior to the appearance at trial, plus 23 cents per mile each way from the place of service to the place of trial

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:
Third-party defendant’s attorney:

Signature date:
March 9, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read on Claimant’s motion for the issuance of subpoenas ad testificandum pursuant to Civil Practice Law and Rules §2302(b) directed to Dr. Andrew Shapiro and Dr. Hari Chakavorty:
1,2 Notice of Motion, Affidavit in Support by Robert Dystant, Claimant and attached subpoenas

  1. Affirmation in Opposition by Barry Kaufman, Assistant Attorney General and attached exhibits
  1. Motion to Strike the Respondent’s Affirmation in Opposition by Robert Dystant (treated as Reply)
5,6 Filed papers: Claim, Answer

Robert Dystant alleges in his claim that Defendant’s agents failed to provide him with adequate medical care while he was an inmate in the custody of the New York State Department of Correctional Services [DOCS]. Specifically, he appears to allege that he did not receive adequate surgical treatment for his “abnormal bone-structure” in his left foot and/or the surgery - a bunionectomy - was badly performed; and received inadequate medical care thereafter necessitating further surgery. He asserts he suffers from a “dropped toe” in that he cannot lift the big toe on his left foot or put pressure on the toe, foot and leg, continues to have “the abnormal bone structure that should of been removed”; and is the “victim of unnecessary pain and suffering” as a result. [Claim Number 108482, ¶¶ 6-20].

Generally, since Claimant is not a person authorized to issue a subpoena, he must seek a Court order allowing the issuance of a subpoena upon proper motion. Chopak v Marcus, 22 AD2d 825, 826 (2d Dept 1964), see Civil Practice Law and Rules §2302 (a) and (b). Proposed subpoenas for the Court’s signature should accompany the motion. Pursuant to this Court’s instructions, [see Letters to Claimant dated September 14, 2006 and January 17, 2007] Claimant has brought this motion seeking the issuance of two (2) trial subpoenas directing Dr. Shapiro and Dr. Chakavorty to testify.

An affidavit indicating why the testimony of each witness is material and necessary to the prosecution of the claim must be included, akin to the pre-trial disclosure standards. See generally Civil Practice Law and Rules §3101. In Price v State of New York, 4 Misc 3d 1008(A)(Ct Cl 2004), for example, where it was indicated that the inmate witnesses sought were eyewitnesses to the incident in which Claimant was injured, the Court did not find anything more than relevance by the assertion: insufficient to show that the testimony would be necessary. As that Court stated:
“. . . ‘[S]omething more than mere relevance or materiality must be shown to obtain disclosure from a non-party witness’ . . . (citations omitted). To make the necessary showing, the party seeking permission to depose a non-party inmate should spell out (or provide an affidavit establishing) the anticipated testimony; establish that the information the witness possesses is somehow unique and not merely cumulative to what claimant will relate and/or what is recorded in any documents concerning the incident, and establish that the information cannot be obtained from another source . . .”
Finally, if what Claimant is seeking is opinion testimony as to whether the treatment provided Claimant was appropriate and reasonable, a subpoena compelling such testimony is not appropriate. Claimant should understand that an “[e]xpert witness [such as a physician] can be subpoenaed to testify to facts within [his] [own] knowledge and to physical observations, but cannot be compelled to give testimony concerning matters that require employment of the expert’s expertise, education, judgment or opinion in the expert’s particular field of expertise.” Blake v State of New York, UID #2000-019-501, Claim No. 85065, Motion No. M-61001 (Lebous, J., filed March 15, 2000 [quoting 58 NY Jur 2d, Evidence & Witnesses, §754]). Eliciting expert opinions at trial requires that Claimant make arrangements with a witness before trial, including negotiation of any expert witness fee.

The line between a fact witness and an expert witness can often not be determined until trial when the witness appears and the questions are evaluated. Any objections regarding the substance of the questions posed would be determined as they arise. Fristrom v Peekskill Community Hospital, 239 AD2d 315 (2d Dept 1997); Cuccia v Brooklyn Medical Group, 171 AD2d 836 (2d Dept 1991); Waters v East Nassau Medical Group, 92 AD2d 893 (2d Dept 1983).

In the affidavit in support of his present motion, Mr. Dystant states that Dr. Shapiro “is the podiatrist who examine (sic) my left foot after the operation and determined that the operation was unsuccessful. Dr. A Shapiro testimony is needed to substantiate why the bunion-ectomy operation was unsuccessful, and why the subsequent abnormal bone structure, drop left big toe should not have happened. Additionally, conversation is needed to discuss the abnormal bone protrusion and disfigurement.” [Affidavit in Support by Robert Dystant, Claimant, ¶5].

In an affidavit appended to defendant’s opposition to the motion, Dr. Andrew Shapiro states that “on April 18, 2001” he first “began dealing with a patient by the name of Robert Dystant” who “complained of pain in his bunion.” [Affirmation in Opposition, Exhibit 2, ¶3]. He indicates that prior to seeing Mr. Dystant himself, another podiatrist had used “anti-inflammatories, special shoes and splints . . . to address . . . [Claimant’s] bunion problem.” [ibid. ¶4]. When Claimant still complained of pain “in 2001 . . . [Dr. Shapiro] requested a surgical consult with the orthopedic surgeon.” [Ibid. ¶5]. Dr. Shapiro then indicates that he saw the post-operative x-rays, and noted then that the goal of the procedure had been met in that “the angle between the big toe and the bone behind it, . . . was decreased to an angle . . .[Dr. Shapiro] found acceptable.” [Ibid. ¶6]. The doctor also indicates that there is no such medical condition “known as a dropped toe” and that a well-known risk of the bunionectomy claimant underwent is a situation where “the big toe can slip under the second toe.” [Ibid. ¶¶ 7 & 8]. The doctor then concludes by saying that “[a]ttempting multiple conservative, non-surgical treatments to relieve Mr. Dystant’s bunion pain was not only appropriate, but strongly recommended prior to any surgical intervention. Surgery is elective, and should be reserved for ‘last-resort’ treatments; based on evaluation of pre and post-operative x-rays, and charted documentation of the post-operative course, it is my professional opinion that the surgery on his left bunion did not deviate from acceptable medical standards in this community.” [Ibid. ¶9].

A fair reading of Dr. Shapiro’s affidavit shows that while he could give testimony concerning claimant’s treatment, he could also give his opinion that the treatment received “did not deviate from acceptable medical standards in this community,” [id.] were he asked. While it would be improper for Claimant to compel this professional opinion as stated in the affidavit, should it be volunteered, for example, on cross-examination, unless Claimant has another expert he has hired to render opinions whose view differs from that of Dr. Shapiro, Dr. Shapiro’s would be the opinion before the Court. Accordingly, while the Court will sign the subpoena directing Dr. Shapiro to appear and give testimony because Claimant has established that his testimony is material and necessary as to the medical care Claimant received, he is not entitled to elicit his professional opinion and, if same is volunteered, there will be difficulty establishing the elements of this cause of action.

In a similar vein, Claimant seeks the testimony of Dr. Chakavorty, who is a primary care physician at Green Haven Correctional Facility, to testify with regard to “the prolong[ed] pain and suffering, that claimant has been subjected to since the failed bunion-ectomy operation . . . [and] will testify to the type(s) of pain medication claimant has to take for pain, since the failed bunion-ectomy surgery.” [Affidavit in Support by Robert Dystant, ¶6]. In an affidavit attached to Defendant’s opposition papers, Dr. Chakavorty indicates that he first saw Claimant on December 13, 1995, and referred him to a podiatrist at the time, who recommended a bunionectomy. [Affirmation in Opposition, Exhibit 3, ¶¶ 3 and 4]. At that time, “Mr. Dystant refused to have the procedure done . . . ” [Ibid. ¶ 4]. Thereafter, Dr. Chakavorty states, “between 1997 and 2001 various things were ordered to address Mr. Dystant’s pain. He was ordered special shoes to address the bunion situation, anti-inflammatories were ordered as well as physical therapy. These were done in consultation with podiatrists including Dr. Steven Moskowitz..” [Ibid. ¶ 5]. When Mr. Dystant still experienced pain on April 4, 2001, Dr. Chakavorty states he referred him to Dr. Shapiro, who then recommended the bunionectomy. [Ibid. ¶¶ 6 and 7]. The surgery itself was performed by an orthopedic surgeon on May 30, 2001. [Ibid. ¶7 ]. Dr. Chakavorty then volunteers his professional opinion that the treatment claimant received was consistent with acceptable medical practice. [Ibid. ¶ 8].

With regard to Dr. Chakavorty, too, it is apparent that while his testimony is material and necessary with regard to the treatment claimant received, it may prove a mixed blessing.

In any event, Claimant has made the requisite showing of materiality, relevance and necessity with regard to factual information concerning the medical care received under the care of Dr. Chakavorty and Dr. Shapiro.

The physicians may be subpoenaed “in such manner as the court . . . directs, if service is impracticable under . . . [other sections].” Civil Practice Law and Rules § 308(5). This provision is appropriately applied in a case such as this one, involving an incarcerated claimant who wants to subpoena a natural person. See e.g. Matter of Onorato v Scully, 170 AD2d 803 (3d Dept 1991); Matter of Hanson v Coughlin, 103 AD2d 949 (3d Dept 1984); Matter of Davis v Coughlin, 96 AD2d 682 (3d Dept 1983). Accordingly, Claimant may serve the subpoenas upon Dr. Shapiro and Dr. Chakavorty by certified mail, return receipt requested.

The appearances of the doctors authorized herein are solely as fact witnesses. They must each be tendered a $15.00 appearance fee for a day’s attendance at trial, with the subpoena, plus 23 cents per mile each way from the place of service to the place of trial. Civil Practice Law and Rules § 8001(a).

The proposed subpoenas Mr. Dystant submitted are not adequate, in that they do not contain a trial date because no trial date has been scheduled. Once the trial date is set, Claimant should immediately prepare the judicial subpoenas, and submit them to chambers for approval and signature by the Court. If acceptable, the Court will sign the subpoenas and return them to the Claimant who may then serve them by certified mail, return receipt requested. Claimant should include the statutory witness and mileage fee required by Civil Practice Law and Rules §8001(a) with the subpoenas he serves.
Accordingly, Claimant’s motion for the issuance of trial subpoenas [M-72447] is hereby granted as set forth above.

March 9, 2007
White Plains, New York

Judge of the Court of Claims