New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-032-123, Claim No. 112084, Motion No. M-76227


Synopsis



Case Information

UID:
2008-032-123
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112084
Motion number(s):
M-76227
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 8, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Initially, the Court notes that a trial of this matter has yet to be scheduled rendering any application for a proposed witness to appear at trial premature. Upon this ground alone, and noting that a subpoena is not the proper mechanism to “alert” (Pettus Notice of Petition, ¶ 2) a State employee that his or her testimony will be sought at a trial at some undetermined date in the future, claimant’s motion is denied without prejudice (see Carter v State of New York, UID # 2003-028-522, Claim No. 105747, Motion No. M-66194, Sise, J.; McCain v State of New York, #2006-030-530, Claim No. 110056, Motion No. M-71178, Scuccimarra, J.; Arce v State of New York, #2003-009-20, Claim No. 105449, Motion No. M-66306, Midey Jr., J.).

Upon notification by the Court that the matter has been calendared for trial, claimant may make a proper application for a subpoena pursuant to CPLR 2302 (b) by submitting an affidavit stating why he believes the testimony or material sought is necessary and relevant together with the proposed subpoenas for the Court’s signature. He then must send the application and related documents to the Chief Clerk in Albany for processing and serve a copy upon the Attorney General. If the Court grants the application, the subpoenas will be signed and returned to the claimant. The claimant is, thereafter, responsible for properly serving the subpoenas and any related expenses such as travel expenses and witness fees (see e.g. CPLR 8001 [a]; see also Shell v State of New York, 307 AD2d 761).

Motion No. M-76227 is hereby denied.



June 8, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:

1. Notice of Petition, filed February 6, 2009 with annexed affidavit of James Pettus, pro se, sworn to January 30, 2009 and proposed subpoena ad testificandum;

2. Affirmation in Opposition to Claimant’s Motion for the Issuance of Subpoenas of Roberto Barbosa, Esq., AAG, filed April 2, 2009.