New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-015-127, Claim No. 115479, Motion Nos. M-75764, M-75765, M-75766, M-75857


Synopsis


Claimant's motions for subpoenas were denied as inappropriate procedure vehicle for obtaining discovery.

Case Information

UID:
2009-015-127
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):
115479
Motion number(s):
M-75764, M-75765, M-75766, M-75857
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 2, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves in three different motions (M-75764; M-75765; M-75766) for the issuance of judicial subpoenas to secure documents from the Department of Correctional Services pursuant to CPLR 2302 (a). In motion number M-75857 he moves to compel compliance with subpoenas pursuant to CPLR 2308. Claimant seeks damages for certain alleged improprieties committed by correction officers, including planting contraband (Ultram) in his cell and issuing a misbehavior report based thereon; placing a cell shield on his cell based on false allegations of spitting or threatening to spit on a correction officer, and verbally threatening and harassing him by tampering with his food and interfering with his ability to shower.

Motion number M-75764 seeks a judicial subpoena duces tecum to obtain complaints and grievances submitted by the claimant against Correction Officer Matthew Steve and copies of any investigation and responses in relation thereto.

Motion number M-75765 seeks a judicial subpoena duces tecum to obtain the "criminal rap sheet" of Correction Officer Neil Yando (see proposed Subpoena Duces Tecum).

Motion number M-75766 seeks a judicial subpoena duces tecum to obtain complaints and grievances against Correction Officer Matthew Steve concerning assaults and abuse of inmates together with his "criminal rap sheet" (see proposed Subpoena Duces Tecum).[1]

In general, “ 'a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence' ” (Matter of Murray v Hudson, 43 AD3d 936, 937 [2007], quoting People v Gissendanner, 48 NY2d 543, 551 [1979]). CPLR 3120 (1) permits the service of a notice for discovery on a "party" and a subpoena duces tecum on "any other person". Claimant's request for subpoenas are an inappropriate procedural vehicle for obtaining discovery from the defendant in this case. Moreover, claimant's attempt to secure the "criminal rap" sheets of the named correction officers appears to be nothing more than an "unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable him to impeach the witness" (Gissendanner, 48 NY2d at 549). The issuance of subpoenas in these circumstances is clearly inappropriate.

Lastly, claimant's motion to compel compliance with subpoenas not yet issued or served is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" (22 NYCRR § 130-1.1 [c] [1]; see also 22 NYCRR § 206.20). Although such conduct appears to be frivolous, the Court is constrained at this juncture to forego the imposition of sanctions as no request for sanctions was made and claimant has not had a reasonable opportunity to be heard on the issue (see 22 NYCRR § 130-1.1 [d]).

Based on the foregoing, claimant's motion numbers M-75764; M-75765; M-75766 and M-75857 are denied.


February 2, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

Motion No. M-75764
  1. Notice of motion dated October 6, 2008;
  2. "Affidavit/ Affirmation" of James Pettus sworn to October 10, 2008 with exhibit;
  3. Affirmation of Saul Aronson dated November 24, 2008 with exhibit.

Motion No. M-75765

  1. Notice of motion dated October 6, 2008;
  2. "Affidavit/Affirmation" of James Pettus sworn to October 10, 2008 with exhibit;
  3. Affirmation of Saul Aronson dated November 24, 2008 with exhibit.

Motion No. M-75766

  1. Notice of motion dated October 6, 2008;
  2. "Affidavit/Affirmation" of James Pettus sworn to October 8, 2008 with exhibit;
  3. Affirmation of Saul Aronson dated November 24, 2008 with exhibit.

Motion No. M-75857

  1. Notice of petition dated November 10, 2008;
  2. Notice of petition of James Pettus sworn to November 12, 2008;
  3. Affirmation of Saul Aronson dated November 26, 2008 with exhibit.




[1]. Review of motion number M-75766, which was served upon the defendant and is attached as defendant's Exhibit A, reveals that it is not the same as that which was filed with the Court. In place of the proposed subpoena that was submitted to the court, the claimant served upon the defendant what appears to be discovery demands, labeling them, incorrectly according to the defendant, "second attempt". Inasmuch as claimant has filed with the Court an affidavit of service of the motion, sworn to under the penalties of perjury, claimant is warned against similar future actions.