4,5 Filed papers: Claim, Answer
Claimant alleges that defendant’s agents negligently failed to provide
him with adequate medical care while he was in the custody of the New York State
Department of Correctional Services (hereafter DOCS) at Downstate Correctional
Facility (Downstate) and Coxsackie Correctional Facility (Coxsackie).
Specifically, Mr. Kadry states that he was improperly given medication to treat
hepatitis - when he actually suffered from diabetes - commencing on August 7,
2003 until an unspecified date, and developed vocal chord paralysis and removal
of his gall bladder in September 2003 as a result. Trial of the matter is
scheduled for October 31, 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. Pursuant to this
Court’s instructions, [see Letters to Claimant dated May 20, 2008
and June 3, 2008] claimant has brought this motion seeking the issuance of a
trial subpoena directing Dr. Klyszejko to testify.
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
Finally, if what claimant is seeking is opinion testimony 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.
In the affidavit in support of the motion, Mr. Kadry indicates that Dr.
Klyszejko was one of his treating physicians, and can interpret claimant’s
medical records. He indicates that he seeks Dr. Klyszejko’s testimony as a
In opposition, defendant indicates that claimant has not sustained his burden
of showing how this testimony relates to his claim asserting lack of adequate
medical care, is not cumulative to what the claimant himself could relate, and
that claimant is clearly attempting to elicit expert testimony from the doctor.
[Affirmation by Dewey Lee, Assistant Attorney General, ¶¶2 and 3].
Defendant also indicates that Dr. Klyszejko is an employee of DOCS.
The Court is satisfied, based upon the claimant’s affidavit, and a review
of the sworn statements in the filed claim and the attachments thereto (which
include portions of claimant’s ambulatory health record), that the
testimony of this witness is material and necessary to the prosecution of his
claim and not cumulative. See §3101 Civil Practice Law and Rules.
The appearance of the physician authorized herein is solely as a fact
The proposed subpoena Mr. Kadry submitted is not adequate, in that it does not
contain a complete address, among other things. Accordingly, the Court has
prepared and executed its own subpoena for the claimant to serve as required
Procedurally, the witness allowed 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. Accordingly, the subpoena
authorized herein may be served by certified mail, return receipt requested,
rather than personally. Since the witness subpoenaed is a DOCS employee in any
event as noted in the defendant’s affirmation, it has been the practice
in this Court to waive the appearance fee under these circumstances, therefore
claimant is not required to tender the statutory witness fees. See Civil
Practice Law and Rules §8001(a).
Accordingly, claimant’s motion is granted as set forth above.