New York State Court of Claims

New York State Court of Claims

MEDINA v. THE STATE OF NEW YORK, #2007-044-500, Claim No. 109170, Motion No. M-72754


Claimant’s motion for subpoenas granted for issuance to two current employees of DOCS who were employed at Southport Correctional Facility at the time his cause of action accrued. Motion denied for witnesses who are no longer under DOCS control or custody, where their testimony is not set forth in detail or is merely repetitive of other evidence.

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:
HON. ANDREW M. CUOMOBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed this claim alleging that he was housed for approximately 28 days in a cell at Southport Correctional Facility (“Southport”) in which the walls and cell bars were covered with feces. This claim is scheduled for trial on January 25, 2007. Claimant, as an inmate proceeding pro se, is not a person authorized to issue subpoenas and seeks a court order allowing the issuance of a subpoena (CPLR 2302). Defendant opposes the motion, contending that claimant failed to establish the required materiality or necessity for the subpoenas.

Claimant seeks subpoenas for Superintendent Michael McGinnis, Deputy Superintendent Angelia Bartlett, Correction Sergeant G. Manos and former inmate Rafael Prestol. Initially, Assistant Attorney General (“AAG”) Joseph F. Romani has advised that defendant intends to request the attendance of Bartlett and Manos who are employed at Southport. Based upon AAG Romani’s representation that those two witnesses will be present, subpoenas will not be necessary. Former Superintendent McGinnis has retired and is no longer in defendant’s control, and Rafael Prestol has been released from custody. Claimant has failed to set forth the substance of McGinnis’ purported testimony, and thus he has not satisfied his burden of establishing that such testimony is material and necessary (see Moley v State of New York, Ct Cl, May 25, 2006, Moriarty III, J., Claim No. 105084, Motion No. M-71335 [UID # 2006-037-011]; Smith v State of New York, Ct Cl, June 24, 2005, Lebous, J., Claim No. 101701-A, Motion Nos. M-70205, M-70206, [UID # 2005-019-544]). Although claimant supplied an affidavit of Prestol sworn to February 18, 2004 (attached to the claim), Prestol’s expected testimony would concern only the origin of the feces in the cell (he allegedly saw the feces thrown at the inmate previously housed in that cell). However, Prestol apparently does not have first-hand knowledge of the condition of the cell at the time that claimant arrived, and is simply paraphrasing claimant’s conversation with the correction officers escorting him. As a result, claimant has failed to establish that Prestol’s testimony is material and necessary or that it cannot be obtained from other sources.[1] Accordingly, claimant’s motion for trial subpoenas is denied in its entirety.

January 10, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were considered on this motion:

(1) Notice of motion filed December 26, 2006; Affidavit of Anthony Medina sworn to December 20, 2006 with annexed exhibits.

(2) Affirmation in Opposition of Joseph F. Romani, AAG filed January 5, 2007.

Filed Papers: Claim filed April 9, 2004; Verified Answer filed on May 13, 2004.

[1]. In its response to claimant’s interrogatories, defendant states that on February 9, 2004, feces was discovered thrown into cell A-2-4 which was occupied at that time by Inmate Garib, and later by claimant. Defendant’s response indicates that Garib and Inmate Torres (who presumably threw the fecal matter) were moved to different cells, and the cell was thoroughly cleaned.