New York State Court of Claims

New York State Court of Claims

MICOLO v. THE STATE OF NEW YORK, #2008-010-019, Claim No. 110324, Motion No. M-75030


Synopsis


Inmate claimant’s motion for issuance of subpoenas and summonses denied.

Case Information

UID:
2008-010-019
Claimant(s):
MARCUS A. MICOLO
Claimant short name:
MICOLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110324
Motion number(s):
M-75030
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
MARCUS A. MICOLOPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 27, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant’s motion for issuance of subpoenas and summonses:
Claimant’s Motion For Issuance of Subpoenas and Summonses and Exhibits.........1

Attorney’s Affirmation in Opposition and Exhibit...................................................2

Claimant seeks to move this Court to issue his attached subpoenas and summonses and to “grant him latitude” in locating the witnesses (Claimant’s Motion For Issuance of Subpoenas and Summonses, ¶7).

Specifically, claimant seeks the production of inmates: Daniel L. Florian (presently incarcerated at Mt. McGregor Correctional Facility); Vincent Dabruzzo (presently incarcerated at Eastern Correctional Facility); and Robert Haden (presently incarcerated at Southport Correctional Facility). Claimant has failed to demonstrate with sufficient particularity that the testimony of the inmate witnesses is material and necessary to the prosecution of this claim and that their testimony would not be cumulative. Accordingly, claimant’s motion is DENIED as to these witnesses.

Claimant also seeks the production of Sergeant Haggenmiller and Correction Officer D. Gomez. With regard to these witnesses, defendant represents that they are no longer employed by the State and, therefore, are not under the State’s control. Moreover, claimant has failed to demonstrate with sufficient particularity that the testimony of these non-party witnesses is material and necessary to the prosecution of this claim and that their testimony would not be cumulative. Accordingly, claimant’s motion is DENIED as to these witnesses.

With regard to Brian Fischer, former Superintendent of Sing Sing Correctional Facility (Sing Sing), defendant represents that he is presently the Commissioner for the Department of Correctional Services and does not possess any personal knowledge of the relevant events of this claim. Accordingly, the Court finds that claimant has failed to demonstrate with sufficient particularity that the testimony of this non-party witness is material and necessary to the prosecution of this claim and that his testimony would not be cumulative. Moreover, the Court finds that it would be unduly burdensome to compel the testimony of a witness in a top administrative position without a sufficient basis (see Matter of Miller v Goord, 1 AD3d 647, 648 [petitioner’s request to call agency officials who have no personal knowledge of the charges at issue was properly denied as “the case law makes clear that a hearing officer is under no obligation to entertain testimony from witnesses who have no personal knowledge of the charges at issue and whose testimony would be entirely irrelevant to the issue of a petitioner’s guilt or innocence”]; Vividize, Inc., v Modern Litho, 59 AD2d 616 [commissioner could not be compelled to testify where there was insufficient proof that the commissioner possessed detailed personal knowledge of the facts at issue]; Long Is. Coll. Hosp. v Whalen, 55 AD2d 792). Accordingly, claimant’s motion is DENIED as to this witness.

Correction Officer N. Bailey is currently employed at Marcy Correctional Facility in Oneida County. Correction Officer F. Jones is currently employed at Greene Correctional Facility in Greene County and Correction Officer F. Richmond is currently employed at Collins Correctional Facility in Erie County. While defendant concedes that these witnesses are under defendant’s control and can be made available to testify at trial, defendant points out that claimant has failed to demonstrate with sufficient particularity that the testimony of these witnesses is material and necessary to the prosecution of this claim and that their testimony would not be cumulative. Accordingly, claimant’s motion is DENIED as to these witnesses.

Correction Officers A. Sanchez and L. Dorsey are currently employed at Sing Sing and William A. Lee is currently employed as the Deputy Superintendent for Security Services at Sing Sing and, while defendant concedes that these witnesses are under defendant’s control and can be made available to testify at trial, defendant points out that claimant has failed to demonstrate with sufficient particularity that the testimony of these non-party witnesses is material and necessary to the prosecution of this claim and that their testimony would not be cumulative. Accordingly, claimant’s motion is DENIED as to these witnesses.

With regard to Marlon Moore, DMD, an oral and maxillofacial surgeon, this issue regarding production of an oral and maxillofacial surgeon was addressed by this court in its Decision and Order on claimant’s motion M-74505, filed-stamped April 10, 2008 and this Court’s Decision and Order on claimant’s motion M-75029, dated June 27, 2008. Again, claimant has not made a sufficient showing warranting a court order compelling production of an expert witness and claimant is again cautioned that such repetitive motions are frivolous and unduly burdensome to the Court and may subject claimant to monetary sanctions. Claimant has also failed to make a sufficient showing warranting a court order compelling the production of Dr. Webber’s testimony at trial. Dr. Webber is affiliated with Westchester Medical Center and is not within the State’s control and claimant has not established that Dr. Webber has any personal knowledge of the facts of this claim or how Dr. Webber’s testimony is material and necessary to the prosecution of this claim. Moreover, claimant may not compel either doctor 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” (58A NY Jur 2d, Evidence & Witnesses, § 752). Accordingly, claimant’s motion as to Drs. Moore and Webber is also DENIED.



June 27, 2008
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims