This matter is currently scheduled for trial on November 7, 2008. The claim
alleges that claimant was injured as a result of defendant’s negligence
while he was an inmate at the Mid-State Correctional Facility. According to
claimant’s bill of particulars, previously filed with the court, claimant
was injured when he “was struck by another inmate, and fell and struck his
forehead on the cast iron radiator in the four (4) man room claimant was housed
in.” Claimant contends that the radiator was unsafe.
The pro se claimant apparently seeks to have the court issue trial witness
subpoenas. He has filed a Notice of Motion and a simple list of four witnesses
that are requested to be produced, with no supporting affidavit or exhibits.
The list provides only the names of the witnesses, without addresses or any
explanation of their relationship to the case; nor is any explanation offered as
to the purpose of their testimony at trial. It does appear, based upon commonly
known abbreviations appended to the names, that one witness is a nurse, two are
correctional officers, and one is identified as “the treating nuerologist
[sic]”. There is no indication as to whether the neurologist is an
employee of defendant or an outside consulting specialist.
Defendant opposes the motion, arguing that claimant fails to meet the standards
necessary for the issuance of the subpoenas. Defendant relies primarily upon
prior court rulings in Dystant v State of New York, UID No.
2007-030-517, Claim No. 108482, Motion No. M-72447, March 9, 2007,
Scuccimarra, J., and Price v State of New York, 4 Misc 3d 1008A.
CPLR Article 23 sets forth the mandates with regard to the issuance of
subpoenas. Claimant, as a pro se litigant, is not authorized to issue a
subpoena, pursuant to the provisions of CPLR § 2302 (a) (Chopak v
Marcus, 22 AD2d 825 [2d Dept 1964]). However, claimant “is not
deprived of his right to obtain witnesses since he can make application to the
court for issuance of his subpoenas” (Panek v McLaughlin, 110 Misc
2d 1017, 1019, citing Schwartz v Shapiro, 91 NYS2d 771).
As the treatise New York Civil Practice CPLR has noted:
[j]udicial subpoenas are issued by courts most often at the request of pro se
litigants. A party who is not an attorney and is not represented by an
attorney does not have the authority to issue a subpoena. A pro se party
must request that the court issue a subpoena. Whether the subpoena is issued
rests in the court’s discretion.
(Weinstein-Korn-Miller, NY Civ Prac ¶ 2302.03 at 23-19 [2d ed]).
However, a motion seeking the issuance of subpoenas by the court must be
supported by more than a mere list of the proposed witnesses. The issuance of
the subpoenas is discretionary with the court and there must be some rational
basis for the subpoenas. As one court noted, if a judge could not refuse to
issue requested subpoenas, then “private citizens could be harassed and
litigation could become a judicial nightmare at the hands of well-intended but
misled litigants” (Panek v McLaughlin, 110 Misc 2d 1017, 1019).
I am in accord with the position taken by the court in Dystant v State of
New York, UID No. 2007-030-517, Claim No. 108482, Motion No. M-72447,
March 9, 2007, Scuccimarra, J., wherein the court stated that in a motion for
issuance of subpoenas “[a]n 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”.
Accordingly, claimant’s motion for the issuance of subpoenas is denied
without prejudice to the filing of another motion which includes an affidavit
indicating why the testimony of each witness is relevant, material and necessary
to the prosecution of the claim and details the anticipated testimony of the