New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-015-128, Claim No. 115283, Motion Nos. M-75771, M-75856


Motion for subpoenas was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-75771, M-75856
Cross-motion number(s):

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
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 his cell.[1] 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 records.

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 [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.

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 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 denied.

February 2, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The court considered the following papers:

Motion No. M-75771
  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 26, 2008 with exhibit.

Motion No. M-75856

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

[1]. Notably, claimant alleges in claim number 115479 that a correction officer "planted" the Ultram pills in his cell.