Claimant, an inmate proceeding pro se
, moves (M-75771) for the issuance
of a judicial subpoena duces tecum pursuant to CPLR 2312 (a) and to compel
compliance with the subpoena (M-75856) pursuant to CPLR 2308. Claimant seeks
damages for pain and suffering resulting from discontinuance of the medication,
Ultram. Claimant alleges in this regard that his cell was searched, without his
permission and outside his view, and another inmate's Ultram pills were found in
As a result, he alleges that a
correction officer requested that a nurse discontinue the issuance of Ultram to
the claimant, which the nurse did without first obtaining the claimant's consent
or the consent of a physician.
In Motion number M-75771 the claimant seeks a judicial subpoena duces tecum to
obtain the identity of the individuals who discontinued, and authorized the
discontinuance, of his medication. He also seeks copies of all of his medical
In Motion number M-75856 the claimant seeks to compel compliance with the
subpoena, which was neither issued nor served.
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 , quoting People v
Gissendanner, 48 NY2d 543, 551 ). 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.
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] ; see also 22 NYCRR § 206.20).
Although such conduct appears to be frivolous, the Court is constrained at this
juncture to forego the imposition sanctions as no such request was made by the
defendant 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-75771 and M-75856 are
February 2, 2009
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of