New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2008-030-577, Claim No. 113367, Motion No. M-75593


Motion to compel disclosure by pro se inmate claimant denied. Claim alleges that Sing Sing personnel in the package room and later the grievance and/or media review committees wrongfully withheld Japanese language flash cards purchased for educational and religious purposes. Various constitutional infirmities alleged

Case Information

Claimant short name:
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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:
November 14, 2008
White Plains

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See also (multicaptioned case)


The following papers were read and considered on claimant’s motion [M-75593] to

compel discovery:

1,2 Notice of Motion to Compel Response to Demand for Address per N.Y.C.P.L.R. 3124; Affidavit in Support of Motion to Compel Response to Demand for Address per N.Y. C.P.L.R. 3124 by Bernard Thomas, Claimant and attached affidavit of service

  1. Affirmation in Opposition to Motion to Compel Demand for Addresses by Elyse J. Angelico, Assistant Attorney General and attached exhibits
4-6 Filed papers: Claim, Answer; Decision and Order, Thomas v State of New York, UID # 2007-030-570, Claim No. 113367, M-73764 (Scuccimarra, J., October 1, 2007)

Bernard Thomas alleges in his claim that while he was incarcerated at Sing Sing Correctional Facility [Sing Sing] he saw asbestos and lead paint being removed in the mess hall on or about September 11, 2006, yet the mess hall was kept open for the three daily meals served to inmates. He alleges generally that this activity violates the State Constitution, the eighth amendment to the Federal Constitution, the Americans with Disabilities Act, and placed his health at risk. He seeks damages in the amount of $5,000,000.00. He does not indicate in the claim itself, or in subsequent papers filed with the court, what personal injuries he alleges have been suffered.

In the present motion, claimant seeks to compel production of the current addresses of five (5) inmate witnesses, listed in his affidavit in support of the motion, in order to correspond with them. The inmates listed are Sean Harris, DIN 05-A-4933; Jamil Hamdan, DIN 05-A-4955; Eshawn Purdie, DIN 05-R-3950; Steve Hobson, 05-A-4585; and Bruce Frazir, 05-A-3016. He does not indicate how communication with these individuals is material and relevant to the prosecution of his claim.

The court notes initially that communication with fellow inmates is governed by facility directives, and claimant has not indicated whether he has attempted to comply with any inmate correspondence program, as described in a copy of Directive 4422 addressing such program. [See Affirmation in Opposition to Motion to Compel Demand for Addresses by Elyse J. Angelico, Assistant Attorney General, Exhibit B]. If claimant has attempted to initiate such correspondence and been denied, then the program provides an administrative appeal procedure. [See id.].

Given the context in which this request has occurred, however, namely: this motion has been brought after the matter has been scheduled for trial on December 16, 2008; it may be that what claimant is really asking for is that these inmate witnesses be produced to give testimony at trial. If that is the case, the motion is also denied, because claimant has not established entitlement to the production of these witnesses in accordance with the provisions of Civil Practice Law and Rules §2302 (b) and the applicable case law.

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 of materiality, relevance and necessity. See generally Civil Practice Law and Rules §3101; Price v State of New York, 4 Misc 3d 1008(A) (Ct Cl 2004);[1] Amaker v State of New York, UID # 2007-015-215, Claim No. 110623, Motion No. M-73249 (Collins, J., July 16, 2007).[2] The testimony sought should not be cumulative or redundant.

Procedurally, any witnesses allowed after a proper application 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 would appropriately be 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). If upon a proper application subpoenas are authorized they may be served by certified mail, return receipt requested, rather than personally. The subpoenas should be directed to the Superintendent of the facility housing the inmates.

Additionally, the sole reimbursement available to the State upon issuance of such subpoenas would be statutory witness and mileage fees.[3] See Tafari v State of New York, UID # 2006-036-533, Claim No. 104897, Motion No. M-71604 (Schweitzer, J., May 22, 2006); citing Matter of State Dept. of Correctional Services, Otisville Correctional Facilty [C.S.E.A. Concerning Salvigan], 142 Misc 2d 380 (Orange Co Sup Ct 1989) §§2303(a); 8001(a) Civil Practice Law and Rules. This only makes sense as a practical matter because inmates in State custody are transported between correctional facilities all the time, using departmental vans and regularly assigned correctional personnel to monitor the transport. This is not a situation where inmates must be produced at a location other than a correctional facility.[4]

Based on the foregoing, claimant’s motion [M-75593] is in all respects denied.

November 14, 2008
White Plains, New York

Judge of the Court of Claims

[1]. It was indicated in Price v State of New York, supra, that the inmate witnesses sought were eyewitnesses to the incident in which claimant was injured, but the court did not find anything more than relevance by the assertion: insufficient to show that the testimony would be necessary. Saying that something more than “mere relevance and materiality” must be shown, the court said: “To make the necessary showing, the party seeking permission to . . . [subpoena] 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 . . . ”
[2]. In Amaker v State of New York, supra, the court said “. . . the claimant sufficiently established that the testimony of . . .[the inmate witness] is material and necessary for trial . . . [The inmate] was allegedly an eyewitness to the incident in which [the] Correction Officer . . . allegedly threw the claimant's typewriter as confirmed in his affidavit submitted with the claim. It also appears that, other than the correction officers present, . . . [the inmate witness] is the only other witness whose identity is known and his testimony may well be necessary to support the claimant's allegations . . . ”
[3]. Under Civil Practice Law and Rules §8001(a), the attendance fee is $15.00 per day, and the travel expense fee is twenty-three cents per mile for each mile to the place of attendance from the place where the witness was served.
[4]. In that case, when a claimant has been granted poor person status in accordance with Civil Practice Law and Rules Article 11, the provisions of Civil Rights Law §79(3)(b) apply, making the expenses of transportation and security a State charge. Without such status, the defendant is generally directed by the court to tell claimant in writing what those costs would be, and claimant is then either directed to remit same prior to such movement of the requested inmate witness, or the figure is noted as a lien to be paid out of any recovery.