New York State Court of Claims

New York State Court of Claims

SEPULVEDA v. THE STATE OF NEW YORK, #2008-041-046, Claim No. 111586, Motion No. M-75823


Synopsis


Claimant’s motion for an order permitting service of subpoena on an inmate denied as procedurally and substantively defective.

Case Information

UID:
2008-041-046
Claimant(s):
ARCELIO SEPULVEDA, JR.
Claimant short name:
SEPULVEDA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111586
Motion number(s):
M-75823
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
ARCELIO SEPULVEDA, JR.Pro Se
Defendant’s attorney:
None
Third-party defendant’s attorney:

Signature date:
November 13, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant applies by letter for a court-ordered subpoena directing defendant to produce inmate Johnnie Pickett to testify at the trial of this claim on December 5, 2008. Claimant’s application is denied.

CPLR § 2302 (b) provides that a “subpoena to compel . . . attendance of any person confined in a penitentiary or jail, shall be issued by the court. Unless the court orders otherwise, a motion for such subpoena shall be made on at least one day’s notice to the person having custody of the record, document or person confined.”

Claimant has failed to provide any notice of the application to the defendant and the motion must be denied on that ground alone. In addition, claimant failed to provide notice of his application to the Attorney General.

Claimant’s motion is further procedurally defective because claimant failed to provide the Court with the proposed subpoena (see Johnson v State of New York, [Ct Cl, Scuccimarra, J., UID #2004-030-563])[1].

Assuming claimant had made the motion properly, it remains substantively defective. In Sebastiano v State of New York (112 Misc 2d 1027, 1028 [Ct Cl 1981]), the court stated that the CPLR § 2302 requirement of a court ordered subpoena with respect to inmates:
“[I]s to permit the court to exercise discretion in requiring the attendance of prisoners at a trial. A court should not, without a compelling necessity, require the Department of Correctional Services to transport 12 prisoners to a central point from such widely separated locations as Clinton, Greenhaven, Great Meadow, Sing Sing, Eastern and Auburn. The security problem is serious and the expense would be burdensome to the taxpayers of the State of New York.”
It is the claimant’s burden to show that the testimony of the requested inmate is “necessary to the prosecution of his claim” (Ramirez v the State of New York, [Ct Cl, Hard, J., UID #2006-032-049]; Livingston v State of New York, 267 AD2d 972 [4th Dept 1999]).

Claimant does not state why the testimony of the proposed inmate-witness is relevant or necessary to the prosecution of his claim.

The motion is denied.



November 13, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimant’s letter request for trial subpoena, received October 29, 2008.

[1].This and other decisions of the Court of Claims may be found at the Court’s website: www.nyscourtofclaims.state.ny.us.