New York State Court of Claims

New York State Court of Claims

SUMPTER v. THE STATE OF NEW YORK, #2008-030-542, Claim No. 110098, Motion No. M-75126


Second motion by inmate claimant for trial witness subpoenas granted in part. Claim involves failure to provide adequate medical care and negligence in assigning claimant to top bunk despite documented medical condition. Testimony of at least some of the medical witnesses material and necessary to the prosecution of his claim, while other testimony unnecessary and cumulative. Distinction between expert and fact witness.

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:
July 10, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant’s motion to reargue and/or renew a prior

motion seeking the issuance of trial witness subpoenas pursuant to Civil Practice Law and Rules


1,2 Notice of Motion for Reargument; Affidavit in Support of Motion by Jon Sumpter, Claimant sworn to June 16, 2008; attached proposed subpoenas

  1. Affirmation by Dewey Lee, Assistant Attorney General
  1. Notice to Court by Jon Sumpter, Claimant
5-7 Filed Papers: Claim; Answer; Decision and Order, Sumpter v State of New York, UID # 2008-030-527, Claim No. 110098, Motion No. M-74983 (June 5, 2008, Scuccimarra, J.)
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 (Downstate), 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 now scheduled for September 12, 2008, having been adjourned from July 11, 2008.

In the filed claim, Mr. Sumpter indicates that he arrived at Downstate from Five Points Correctional Facility (Five Points) on October 17, 2003. [Claim No. 110098, ¶6]. He asserts that at Five Points he had been diagnosed with problems in his right knee, his left knee, and injury to his right foot, had been prescribed pain medication, and issued a permit for a knee brace on March 22, 2002. [Id.]. He was issued an additional permit for placement in a bottom bunk on June 12, 2002. [Id.]. He indicates that Five Points medical personnel had also scheduled him to undergo surgery on his right foot, with such surgery ultimately taking place on or about January 23, 2004 at Albany Medical Center. [Id.]. At Downstate he was examined by medical personnel on or about October 20, 2003, who he claims wanted him placed in a lower bunk, but he was nonetheless assigned to a top bunk. [Ibid. ¶7]. A grievance he filed “proved futile.” [Ibid. ¶11 (sic)]. Thereafter, on or about November 17, 2003 claimant fell while attempting to climb down off the top bunk. [Ibid. ¶11]. When he was discovered by correction officers he was escorted to the medical unit and treated. [Id.]. The physician “refused” to issue claimant a bottom bunk permit. [Id.]. A different physician on a subsequent day examined him and recommended placement in a bottom bunk. [Ibid. ¶12]. Other treatment, including placement in the mental health unit, followed. [Id.]. Claimant was ultimately transferred to Clinton Correctional Facility on or about December 2, 2003. [Ibid. ¶15].

Claimant asserts eight (8) causes of action in his claim arising from these basic asserted facts, including negligence, constitutional tort, and inadequate medical treatment and care.
Motion to Reargue/Renew
The papers submitted do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied. See Civil Practice Law and Rules §2221(d)(2); Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); Loris v S & W Realty Corp., 16 AD3d 729, 730 (3d Dept 2005).

A renewal motion asks the Court to consider new facts not previously offered that would change the earlier determination, or a change in the law that would change the prior determination. Civil Practice Law and Rules §2221(e). With respect to new facts, however, the motion should contain “reasonable justification for the failure to present such facts on the prior motion.” Civil Practice Law and Rules §2221(e)(3).

While the papers presented do not present any rationale for the failure to present new information in the earlier motion except for claimant’s misunderstanding as to what was required in order to obtain the issuance of subpoenas, the renewal motion is nonetheless granted, even though technically there was no need to seek reargument or renewal because the Court’s previous decision denying the motion for the issuance of trial subpoenas was without prejudice. On renewal, the present motion is simply treated as another motion seeking issuance of trial witness subpoenas, and is reviewed on that basis.

Motion for Issuance of Trial Witness Supboenas
Pursuant to this Court’s earlier instructions [see Decision and Order, Sumpter v State of New York, UID # 2008-030-527, Claim No. 110098, Motion No. M-74983 (filed June 10, 2008, Scuccimarra, J.); letters to claimant dated April 30, 2008 and May 5, 2008], claimant has now supplied a more descriptive affidavit as to why the court should issue nine (9) trial subpoenas directing production of the following individuals: (1) Robert Macomber, RPA-C from Five Points Correctional Facility; (2) Correction Officer Zikes, Downstate Correctional Facility; (3) Paul Wilson, Physician’s Assistant, Downstate Correctional Facility; (4) Correction Counselor Donaciano Cruz; (5) Skip Hughes, IGP Supervisor; (6) Gordon Lord, Assistant Dep. Program; (7) Correction Officer Harris, Downstate Correctional Facility (8) Dr. Mario Malvarosa, Downstate Correctional Facility; and (9) Ellen Youseff, Physician’s Assistant.

The Court is satisfied, based upon the claimant’s affidavit, and a review of the filed claim, that the testimony of at least some of the witnesses may be material and necessary to the prosecution of his claim, while other testimony appears unnecessary and cumulative. The Court has compared the allegations in the claim - wherein almost none of the personnel with whom claimant interacted are named - and the claimant’s present affidavit wherein he describes (somewhat) the testimony he expects to elicit. From such review it appears that the testimony of Physician’s Assistant Paul Wilson, Physician’s Assistant Ellen Youseff, Dr. Mario Malvarosa, and Correction Counselor Donaciano Cruz, comports with the viable causes of action in the claim and is therefore material and necessary.

Claimant avers that P.A. Wilson was the first to examine him upon arrival at Downstate, reviewed claimant’s medical records, and recommended placement in a lower bunk at Downstate. Dr. Malvarosa was claimant’s treating physician. P.A. Youseff examined claimant after his fall from the bunk, and also recommended placement in a lower bunk. Finally, Correction Counselor Cruz is avowed to have advocated claimant’s placement in a lower bunk, and could testify as to the procedure followed.

As to whether the testimony sought from these individuals is cumulative or could be established by other means, or is not otherwise material and relevant, these issues have not been addressed specifically by defendant, except to say generally that their testimony is not material, relevant or necessary. [See Affirmation by Dewey Lee, Assistant Attorney General, ¶3]. Claimant’s descriptions as to what these witnesses would testify to are the only argument of record therefore.

The presence of the other witnesses sought, however, appears to call for unnecessary, cumulative, testimonial evidence, evidence that might be better presented in documentary form (such as permits, grievances and medical records), and testimony that claimant himself could offer, and thus that aspect of claimant’s motion is denied.

It is noted that if what claimant is seeking is opinion testimony from the medical witnesses as to whether the treatment provided claimant was appropriate and reasonable, a subpoena compelling such testimony is not appropriate. Claimant should understand that an “[e]xpert witness [such as a physician] can be subpoenaed to testify to facts within [his] [own] knowledge and to physical observations, but cannot be compelled 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.” Blake v State of New York, UID # 2000-019-501, Claim No. 85065, Motion No. M-61001 (Lebous, J., March 1, 2000) [(quoting) 58 NY Jur 2d, Evidence & Witnesses, §754]. Eliciting expert opinions at trial requires that claimant make arrangements with a witness before trial, including negotiation of any expert witness fee.

The line between a fact witness and an expert witness can often not be determined until trial when the witness appears and the questions are evaluated. Any objections regarding the substance of the questions posed would be determined as they arise. Fristrom v Peekskill Community Hospital, 239 AD2d 315 (2d Dept 1997); Cuccia v Brooklyn Medical Group, 171 AD2d 836 (2d Dept 1991); Waters v East Nassau Medical Group, 92 AD2d 893 (2d Dept 1983).

Procedurally, the witnesses allowed herein may be subpoenaed “in such manner as the court . . . directs, if service is impracticable under . . . [other sections].” Civil Practice Law and Rules §308(5). This provision is appropriately applied in a case such as this one involving an incarcerated claimant who wants to subpoena a natural person. See e.g. Matter of Onorato v Scully, 170 AD2d 803 (3d Dept 1991); Matter of Hanson v Coughlin, 103 AD2d 949 (3d Dept 1984); Matter of Davis v Coughlin, 96 AD2d 682 (3d Dept 1983). Accordingly, the subpoenas authorized herein may be served by certified mail, return receipt requested, rather than personally.

The proposed subpoenas Mr. Sumpter submitted are not adequate, in that they do not contain a trial date, among other things. Accordingly, the Court has prepared and executed its own subpoenas for the claimant to serve as required herein.

As noted, the appearance of the physician authorized herein is solely as a fact witness. All witnesses must each be tendered a $15.00 appearance fee for a day’s attendance at trial either with the subpoena, or sometime prior to the appearance at trial, plus 23 cents per mile each way from the place of service to the place of trial. Civil Practice Law and Rules § 8001(a).

Accordingly, claimant’s motion is denied in part, and granted in part as set forth above.

July 10, 2008
White Plains, New York

Judge of the Court of Claims