New York State Court of Claims

New York State Court of Claims

MALLOY v. THE STATE OF NEW YORK, #2007-030-529, Claim No. 108929, Motion No. M-73155


Synopsis


Pro-se claimant’s third motion seeking issuance of trial subpoenas for two (2) inmate witnesses denied. [CPLR §2302]. Claimant has simply not indicated how the testimony of these witnesses is material and necessary to the prosecution of his claim. See, CPLR §3101. Mere relevance is not enough. In reviewing the claim, prior motions, and the present affidavit, while both inmate witnesses may offer some corroboration of Claimant’s version of events as part of the res gestae such testimony is not material and necessary to the prosecution of this claim alleging negligence and medical malpractice. The testimony is cumulative. No proposed subpoenas have been appended

Case Information

UID:
2007-030-529
Claimant(s):
ANTHONY MALLOY
Claimant short name:
MALLOY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108929
Motion number(s):
M-73155
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ANTHONY MALLOY, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 18, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on Claimant’s motion:

1-4 Notice of Motion; Affidavit in Support of Notice of Motion Response to Decision and Order, by Anthony Malloy, Claimant, sworn to April 2, 2007; Affidavit of Service; Authorization

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);[1] See also Porter v State of New York, 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. [Id.].

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 appended.

Accordingly, Claimant’s motion number M-73155 is in all respects denied.

May 18, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].The 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 . . .”