New York State Court of Claims

New York State Court of Claims

SUMPTER v. THE STATE OF NEW YORK, #2008-030-527, Claim No. 110098, Motion No. M-74983


Pro se inmate claimant’s motion for issuance of nine (9) trial subpoenas denied. Claimant did not include an affidavit indicating why the testimony of each of these witnesses is material, relevant and necessary (not cumulative) to the prosecution of his claim alleging failure to provide adequate medical care, and negligent placement in top bunk despite documented medical condition. Only statement in affidavit is that the witness would be necessary because they know some facts concerning the alleged negligence and the circumstances of his injury.

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:
Third-party defendant’s attorney:

Signature date:
June 5, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant’s motion for the issuance of trial witness

subpoenas pursuant to Civil Practice Law and Rules §2302(b):

1,2 Notice of Motion; Affidavit in Support of Motion by Jon Sumpter, Claimant, sworn to May 13, 2008; attached proposed subpoenas

  1. Affirmation in opposition by Dewey Lee, Assistant Attorney General
4,5 Filed Papers: Claim; Answer

Jon Sumpter alleges in Claim number 110098, among other things, that defendant’s agents failed to provide him with adequate medical care while he was incarcerated at Downstate Correctional Facility, and caused him further harm by assigning him the top bunk in a cell, from which he fell and suffered injury on or about November 17, 2003, despite a documented medical condition suggesting he should be placed in a different location. Trial of the matter is scheduled for July 11, 2008, and claimant was notified of the trial date by letter dated April 4, 2008.

Generally, since claimant is not a person authorized to issue a subpoena, he must seek a Court order allowing the issuance of a subpoena upon proper motion. Chopak v Marcus, 22 AD2d 825, 826 (2d Dept 1964), see Civil Practice Law and Rules §2302 (a) and (b). Proposed subpoenas for the Court’s signature should accompany the motion. An affidavit indicating why the testimony of each witness is material and necessary to the prosecution of the claim must be included, akin to the pre-trial disclosure standards. See generally Civil Practice Law and Rules §3101.

Pursuant to this Court’s earlier instructions [see letters to claimant dated April 30, 2008 and May 5, 2008], claimant has brought this motion seeking the issuance of nine (9) trial subpoenas directing production of the following individuals: (1) Ellen Youseff, P.A.; (2) Paul Wilson, P.A.; (3) J. Zike, Correction Officer; (4) W.M. Harris, Correction Officer; (5) Gordon Lord, Asst. Dep. Programs; (6) Mario Malvarosa, M.D.; (7) Robert Macomber, RPA-C; (8) Donaciano Cruz, Corr. Counselor; and (9) Skip Hughes, Supervisor IGP.

In his affidavit, claimant writes:
“. . . in order to sustain the cause of action, the claim, it will be necessary to have produced in court . . . [the individuals named] to give testimony to this court relating to the injuries and negligence of the defendants, causing this claim to be before this court. The claimant declares that the testimony of the above named witnesses are necessary because they have immediate attention to the facts of claimants personal injury, and the negligence by defendants causing the personal injury to claimant.” [Affidavit in Support of Subpoena by Jon Sumpter, ¶ 4].

Claimant’s affidavit does not show what any anticipated testimony might be, or how information these witnesses might testify to is not merely cumulative to what claimant himself would relate, or what might be recorded in documents claimant could submit in evidence concerning the incident. See e.g. Price v State of New York, 4 Misc 3d 1008 (A) (Ct Cl 2004).[1] Claimant has simply not indicated in his affidavit how the testimony of these named individuals would contribute to establishing his claim. Based on the present application alone, therefore, it is not clear how these witnesses could provide material and relevant information, and whether such information is necessary, or is cumulative or could be established by other means.

The court has additionally reviewed the filed claim in an attempt to discern whether the claimant’s reasons for picking these witnesses are shown in the sworn statements of the claim or in the records. The claim itself does not refer to any of these witnesses. Additionally, documents produced in discovery are too voluminous to review for these purposes.

Since the primary thrust of claimant’s allegations of harm relate to an alleged failure to abide by the requirements of a purportedly documented medical condition requiring that claimant be allowed to utilize a lower bunk, the court could surmise that the medical witnesses might attest to such condition and whatever treatment was prescribed. Nonetheless, the court should not have to guess what the reasons are for requesting that subpoenas be issued to these individuals. Inclusive of the correspondence directed to claimant by the court, this is now the third time that claimant has been told the method for obtaining trial subpoenas, and what information the court would need in order to execute same.

Accordingly, claimant’s motion is in all respects denied.

June 5, 2008
White Plains, New York

Judge of the Court of Claims

[1]. In Price v State of New York, supra, the claimant indicated that the inmate witnesses sought were eye- witnesses to the incident in which claimant was injured, thus the Court did not find anything more than relevance by the assertion: insufficient to show that the testimony would be necessary. As that Court stated: “. . . ‘[S]omething more than mere relevance or materiality must be shown to obtain disclosure from a nonparty witness’ . . . (citations omitted). To make the necessary showing, the party seeking permission to depose a nonparty 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 . . .”