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.
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
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
Civil Practice Law and Rules §3101; Price v State of New
, 4 Misc 3d 1008(A) (Ct Cl 2004);
Amaker v State of New York
, UID # 2007-015-215, Claim No. 110623, Motion
No. M-73249 (Collins, J., July 16, 2007).
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. See Tafari v State of New
, 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]
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.
Based on the foregoing, claimant’s motion [M-75593] is in all respects