New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-015-157, Claim No. 115464, Motion No. M-75957


Synopsis


Pro se inmate's motion for issuance of subpoenas was denied.

Case Information

UID:
2009-015-157
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):
115464
Motion number(s):
M-75957
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:
April 1, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for the issuance of judicial subpoenas seeking the production of transcripts of "the last five[s] tier three" hearings conducted at Great Meadow Correctional Facility (CPLR 2302). Defendant opposes the motion on the grounds that the claimant's proposed subpoena fails to sufficiently particularize the documents sought and is an inappropriate procedural vehicle for obtaining discovery. The claimant, a pro se inmate in the custody of the Department of Correctional Services, alleges he is improperly confined to the custody of the Department of Correctional Services as the result of the determination of the Time Allowance Committee that he "had not earned all of the good time for which [he was] eligible due to [his] failure to participate in the Alcohol and Substance Abuse Treatment Program" (see claim and Letter from Donald Selsky dated April 30, 2008 attached to claim).

The Court agrees that the claimant's proposed use of a subpoena to obtain documents which may generally be obtained from the defendant during the course of discovery is inappropriate. 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 a subpoena is therefore an inappropriate procedural vehicle for obtaining discovery from the defendant in this case.

Moreover, "[i]t is well settled that the purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding" (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 112 [2006]). Here, the claimant failed to establish that the documents which are the subject of the proposed subpoena are material and relevant to this claim.

Claimant's motion is denied.



April 1, 2009
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice of petition dated November 11, 2008;
  2. Petition of James Pettus sworn to November 12, 2008 with attachment;
  3. Affirmation of Saul Aronson dated January 29, 2009 with exhibit.