New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-015-131, Claim No. 114633, Motion No. M-75769


Pro se inmate's motion for subpoena 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):
Cross-motion number(s):

Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
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 pursuant to CPLR 2302 (a) for the issuance of a judicial subpoena seeking documents from the Department of Correctional Services. The claim arises from the following acts or omissions of the defendant:
"I am charging the ( D.O.C.) with the deliberate indifference to the training, supervising, and discipling of employee's of (D.O.C.). As well as creating a policy and custom that is enforced as a law, when in fact, (volative) of established law and due process (equal protections) by systemically, methodically structured, planned and designed (beatings) of Black inmates for no penological reason or justification. Then putting into (SHU) for psychological torment and torture.

I am charging (C.O. Rositi) with the deliberate indifference to the safety, health, and well-being of inmate Pettus 03R-3597, as well as assault excessive use of force and battery by smacking plaintiff in the face three (3) times, then pushing and smashing against the wall while calling plaintiff "Nigger Trash" for no penological reason or justification. It was done because plaintiff is a black inmate."

Claimant seeks a judicial subpoena duces tecum to obtain the following:
"1. (All) and (any) complaints (lodged) against C.O. Rosotti . . . concerning (assaults) and (battery) on state inmates.

2. C.O. J. Rosotti . . . criminal Rap Sheet For (credibility) and (veracity) . . ."

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" sheet of a correction officer 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.

Additionally, claimant previously served a demand for discovery which included the request for "(All) and (any) complaints against C.O. Rosoti concerning assaults and battery on other inmates" and thereafter moved to compel compliance with this demand. In a Decision and Order dated June 13, 2008 the Court denied the motion upon a finding that the demand was overly broad and potentially included material which is privileged under Civil Rights Law § 50-a [1] (see Pettus v State of New York, UID #2008-015-049, claim no. 114633 [Ct Cl, June 13, 2008], Collins, J). Claimant may not circumvent the Court's prior Decision and Order by resort to a request for a subpoena.

Based on the foregoing, claimant's motion is denied.

February 2, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 6, 2008;
  2. "Affidavit/Affirmation" of James Pettus sworn to October 8, 2008 with attachment.