5-9 Filed papers: Claim, Answer, Malloy v State of New York, Claim No.
108929, Motion No. M-72827, unreported decision and order, (March 27, 2007,
Scuccimarra, J.); Malloy v State of New York, Claim No. 108929, Motion
No. M-72700, unreported decision and order (March 27, 2007, Scuccimarra, J.
No Opposition Filed
Anthony Malloy alleges in Claim Number 108929 that Defendant’s agents
failed to provide him with adequate medical care while he was housed at Green
Haven Correctional Facility (hereafter Green Haven) for a Court appearance on or
about December 18, 2003. He alleges that Defendant failed to place him on the
sick-call list for several days while he was at Green Haven. When he returned to
his “regular correctional facility” - Five Points Correctional
Facility - he was finally seen and treated by medical personnel.
The present motion is again seeking issuance of trial subpoenas for two (2)
inmate witnesses: Peter Delaney (03-A-5743) and David William (99-R-2580),
whose testimony was also the subject of earlier motions by claimant.
[See M-72700, M-72827].
This claim is scheduled for trial on June 22, 2007. There have been several
adjournments based upon earlier motion practice.
As the Court had indicated in Claimant’s earlier motions for issuance of
trial subpoenas, proposed subpoenas for the Court’s signature should
accompany the motion, as should an affidavit indicating why the testimony of
each witness is material and necessary to the prosecution of the claim, akin to
pre-trial disclosure standards. See generally
Civil Practice Law and
Rules §3101; Price v State of New York
, 4 Misc 3d 1008(A)(Ct Cl
2004); See also Porter v State of
, UID# 2006-030-582, Claim No. 107790, Motion No. M-72419
(Scuccimarra, J., November 22, 2006).
In the present motion Claimant states that Mr. William witnessed “each
day as I attemp[ted] to get sick call” and appears to have advocated
and/or witnessed claimant’s requests for attention to the “Sergeant
and L.T. on . . .[his] behalf” and also saw that the windows were
“wide open” and that the officers refused to close the windows.
[Affidavit in Support by Anthony Malloy, ¶2].
With regard to Mr. Delaney, claimant indicates essentially the same information
as given for Mr. William, that “he was involved in the incident concerning
me as I was trying to get sick call . . .”, and also witnessed “. .
. how cold it was and how officer(s) refuse[d] to close . . .” windows.
Claimant has simply not indicated how the testimony of these witnesses is
material and necessary to the prosecution of his claim. See Civil
Practice Law and Rules §3101. Mere relevance is not enough. Price v
State of New York, supra; Porter v State of New York,
supra. In reviewing Claim Number 108929, the prior motions, and the
present affidavit, while both Mr. Delaney and Mr. William may offer some
corroboration of Claimant’s version of events as part of the res gestae
it is not material and necessary to the prosecution of this claim. The
testimony is cumulative. Moreover, no proposed subpoenas have been
Accordingly, Claimant’s motion number M-73155 is in all respects