New York State Court of Claims

New York State Court of Claims

WALSH v. THE STATE OF NEW YORK, #2008-042-524, Claim No. 108194, Motion No. M-75647


Synopsis


This is a pro se claimant who brings a motion seeking to have the court issue subpoenas for trial witnesses. Defendant opposes the motion and argues that claimant fails to meet the standards necessary for the issuance of the subpoenas. The court finds that claimant’s request to issue trial witness subpoenas is not supported and there must be included an affidavit indicating why the testimony of each witness is material and necessary to the prosecution of the claim, akin to the pretrial disclosure standards. Accordingly, claimant’s motion is denied without prejudice to filing another motion which includes such an affidavit.

Case Information

UID:
2008-042-524
Claimant(s):
HOWARD WALSH
Claimant short name:
WALSH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108194
Motion number(s):
M-75647
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
HOWARD WALSH, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: THOMAS M. TRACE, ESQ.Senior Attorney
Third-party defendant’s attorney:

Signature date:
October 22, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion brought by pro se claimant for the issuance of trial witness subpoenas. Defendant opposes the motion and argues that claimant fails to meet the standards necessary for the issuance of subpoenas. The court has considered the following papers:
  1. Notice of Motion filed October 6, 2008
  2. Request for witnesses, attached to Notice of Motion
  3. Opposition affirmation of Thomas M. Trace, Esq., dated October 17, 2008
_______________________________________

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 proposed witness.



October 22, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims