New York State Court of Claims

New York State Court of Claims

MEDINA v. STATE OF NEW YORK, #2008-039-089, Claim No. 109178, Motion No. M-73412


Synopsis


Claimant’s motion for issuance of judicial subpoenas pursuant to CPLR § 2302 is denied. Given claimant’s ability to establish notice through sources other than the testimony of Superintendent Dale Artus, and the potential volume of inmate trials at which Artus would be compelled to testify if the Court were to authorize the issuance of a subpoena, the Court denies claimant’s request with respect to Superintendent Artus. The Court also denies claimant’s request with respect to two fellow inmates since the whereabouts of one inmate are unknown, and claimant’s affidavit fails to establish that the testimony of these witnesses is not merely cumulative to what claimant himself would relate or is otherwise recorded in documents claimant could submit in evidence.

Case Information

UID:
2008-039-089
Claimant(s):
ANTHONY MEDINA
Claimant short name:
MEDINA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109178
Motion number(s):
M-73412
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Anthony Medina, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael C. RizzoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 4, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arose at Clinton Correctional Facility (hereinafter CCF) during the months of August through October 2002 as a result of the alleged loss of electricity in claimant’s cell, the denial of legal supplies and law books and the retaliatory confiscation of claimant’s personal property. Claimant moves the Court for issuance of judicial subpoenas to compel the attendance of four nonparty witnesses to testify at trial which has been adjourned without date. The four individuals include Correction Officer Michael J. McKinnon, Superintendent Dale Artus, and fellow inmates Michael J. Joyner and Christopher Broschart. Defendant opposes the relief requested except as to Officer McKinnon. Defendant states in its opposing papers that it “will produce Officer McKinnon voluntarily without the need for a subpoena.”

Claimant is not an individual authorized to issue a subpoena without a court order (see CPLR § 2302 [a]). Moreover, a subpoena “to compel attendance of any person confined in a penitentiary or jail” must be issued by the court (CPLR § 2302 [b]). Where disclosure against a nonparty is sought, such relief “‘is available only upon a showing of special circumstances, i.e., that the information sought to be discovered is material and necessary and cannot be discovered from other sources or otherwise is necessary to prepare for trial’ ” (Sand v Chapin, 246 AD2d 876, 877 [1998], quoting King v State Farm Mut. Auto Ins. Co., 198 AD2d 748 [1993]). “‘Whether . . . special circumstances have been shown to exist is a sui generis inquiry committed to the sound discretion of the court to which the application is made’” (id., quoting King v State Farm Mut. Auto Ins. Co., supra).

The Court concludes that claimant’s request is denied with respect to each nonparty. “It is the claimant’s burden to show that the testimony of the requested [nonparty witnesses] is ‘necessary to the prosecution of his claim’” (Hall v State of New York, Ct Cl, Milano, J., UID #2007-041-052, quoting Ramirez v State of New York, Ct Cl, Hard, J., UID #2006-032-049). Claimant contends, in relevant part, that the testimony of Superintendent Artus is necessary to establish defendant’s actual and constructive notice of the loss of electricity. More specifically, claimant states that “on September 12, 2002, I stopped Mr. Artis [sic] while he was making rounds and showed him I had no electricity.” Claimant adds that “Mr. Artis [sic] also handled my written complaints on the matter.” Upon a review of the claim, the Court notes that there are various exhibits containing documents which may, if determined admissible, establish that defendant had notice of the loss of electricity to claimant’s cell during the relevant period of time. Given claimant’s ability to establish notice through sources other than the testimony of Superintendent Artus, and the potential volume of inmate trials at which Artus would be compelled to testify if the Court were to authorize the issuance of a subpoena based upon the circumstances presented herein, the Court must deny claimant’s request as it relates to Superintendent Artus.

The Court must also deny claimant’s request for the issuance of subpoenas to inmates Joyner and Broschart. Claimant contends that Broschart has knowledge of the alleged denial of legal materials to claimant and that Broschart filed a similar grievance. He also contends that Broschart and Joyner witnessed Officer McKinnon confiscate his personal items.

As noted by defendant, and as confirmed by the Court, Joyner was released from custody on November 13, 2002. Joyner’s whereabouts are unknown to defendant and, presumably, to claimant since no such information is provided in his moving papers. In any event, the Court finds that, with respect to both Joyner and Broschart, “[c]laimant’s affidavit does not show . . . how information these witnesses might testify to is not merely cumulative to what claimant himself would relate, or what might be recorded in documents claimant could submit in evidence concerning the incident” (Sumpter v State of New York, Ct Cl, Scuccimarra, J., UID #2008-030-527). Thus, claimant’s request for the issuance of subpoenas to Joyner and Broschart is denied.

Since defendant has agreed to produce Officer McKinnon at the trial of this matter, claimant’s request for issuance of a subpoena to McKinnon is also denied.

Accordingly, it is hereby ORDERED that M-73412 is denied.


August 4, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated May 13, 2007;
  2. Affidavit in Support of Motion by Anthony Medina sworn to on May 14, 2007; and
  3. Affidavit in Opposition by Michael C. Rizzo, AAG dated June 19, 2007.