New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-015-047, Claim No. 113705, Motion No. M-74734


Synopsis


Pro se inmate's motion for the issuance of judicial subpoenas was denied.

Case Information

UID:
2008-015-047
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113705
Motion number(s):
M-74734
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 9, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, an inmate proceeding pro se, moves for the issuance of judicial subpoenas to compel the attendance of eight correction officers and Commissioner Fischer of the Department of Correctional Services to testify at trial. Claimant alleges the following in his claim:
"Claimant, who is non-violent, was placed into a maxium [sic] security prison, without committing a serious prison infraction. See: Title 7 NYCRR 280.2 (B) (Therein) causing plaintiff to be beaten, assaulted, robbed, extorted, and sexual harassed (incessintly [sic]) (Thereby) denying plaintiff [reasonable safety] See Farmer v Brennan 114 S.Ct. 1970. These acts are 'on-going' and 'current'.

Plaintiff has no (violence) on his criminal rap sheet or institutional record, or personal history, placing plaintiff life, safety, health, and well-being in (constant) jeopardy, as a non-violent inmate, while in the care, custody and control of (D.O.C.) which is a State Governmental entity.”
Pro se litigants are not included among those who are authorized to issue a subpoena (CPLR 2302 [a]). To obtain a judicial subpoena compelling the attendance of a witness at trial it must be shown that the anticipated testimony is both material and necessary to the prosecution of the action (Cerasaro v Cerasaro, 9 AD3d 663 [2004]; Sand v Chapin, 246 AD2d 876 [1998]; Brown v State of New York, Ct Cl, November 21, 2006 [Claim No. 108217, Motion No. M-72326, UID # 2006-044-516] Schaewe, J., unreported; Moley v State of New York, Ct Cl, May 25, 2006 [Claim No. 105084, Motion No. M-71335, UID # 2006-037-011] Moriarty, J., unreported ). Claimant completely failed to support his request for subpoenas with any explanation as to why the testimony of eight correction officers and Commissioner Fischer is material and necessary to the prosecution of his claim and it certainly is not apparent from the allegations in the claim itself. Additionally, the claimant has failed to support his motion with proposed subpoenas or a properly sworn affidavit. The claimant is not a person who may submit an affirmation in lieu of an affidavit (see CPLR 2106; 2214 [b]; 22 NYCRR § 206.1 [c] and 206.8 [a]).

Accordingly, the claimant’s motion is denied.



June 9, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated March 27, 2008;
  2. Unsworn "Affidavit/Affirmation" of James Pettus dated March 27, 2008;
  3. Affirmation of Glenn C. King dated April 11, 2008.