New York State Court of Claims

New York State Court of Claims

KADRY v. THE STATE OF NEW YORK, #2008-030-557, Claim No. 109883, Motion No. M-75391


Motion by inmate claimant for issuance of trial witness subpoena to treating physician granted. Claimant’s affidavit, sworn statements in claim and attached ambulatory health record establishes that testimony is material and necessary to the prosecution of claim, and not cumulative. Fact witness only.

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:
September 11, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for the issuance of a

trial subpoena:

1,2 Notice of Motion; Affidavit by Mohamed Kadry, Claimant and attachments
  1. Affirmation by Dewey Lee, Assistant Attorney General
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 Rules §3101.

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 fact witness.

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 witness.

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 herein.

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.

September 11, 2008
White Plains, New York

Judge of the Court of Claims