New York State Court of Claims

New York State Court of Claims

LA MOUNTAIN v. THE STATE OF NEWYORK, #2009-015-167, Claim No. 111563, Motion No. M-76465


Synopsis


Pro se inmate's motion for issuance of judicial subpoenas was denied except to the extent of requiring the defendant to make a particular correction officer available for trial.

Case Information

UID:
2009-015-167
Claimant(s):
RONALD LA MOUNTAIN
Claimant short name:
LA MOUNTAIN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEWYORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111563
Motion number(s):
M-76465
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Ronald LaMountain, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 15, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for the issuance of judicial subpoenas compelling two correction officers, the Inmate Records Coordinator and the Acting Superintendent of Great Meadow Correctional Facility, Richard Potter, to appear and testify at trial. Claimant alleges in his amended claim that on April 12, 2005 individuals from the Albany County Sheriff's Department and the Inspector General's Office entered his cell in the honor block housing unit at Great Meadow Correctional Facility and confiscated 36 photographs, claimant's General Equivalency Diploma (GED), high school transcript, and his Paralegal/Legal Assistant Certificate and grade transcripts. Damages claimed include the replacement cost of the photographs, a damaged photo album, and the costs of replacing claimant's GED and paralegal certificate.[1] Pro se litigants are not included among those who are authorized to issue a subpoena (CPLR 2302 [a]). To obtain a judicial subpoena compelling the attendance of a witness at trial it must be shown that the anticipated testimony is both material and necessary to the prosecution of the action (Cerasaro v Cerasaro, 9 AD3d 663 [2004]; Sand v Chapin, 246 AD2d 876 [1998]; Brown v State of New York, Ct Cl, November 21, 2006 [Claim No. 108217, Motion No. M-72326, UID # 2006-044-516] Schaewe, J., unreported; Moley v State of New York, Ct Cl, May 25, 2006 [Claim No. 105084, Motion No. M-71335, UID # 2006-037-011] Moriarty, J., unreported ).

Claimant avers that the testimony of Correction Officer Perry is material and necessary to the prosecution of this claim in that he is the Facility Claims Officer and performed "proceedings" relating to his personal property claim (claimant's affidavit in support of motion, ¶ 5). Review of the documents annexed to the amended claim indicate that Correction Officer Perry investigated the claimant's personal property claim and denied the claim on July 7, 2005 because the items claimed were not lost, they were confiscated, and a receipt for these items had been issued. In addition, Correction Officer Perry authored a report dated August 11, 2005 indicating that certain items specified therein were returned to the claimant. Inasmuch as Correction Officer Perry investigated the matter, his testimony is both material and necessary to the prosecution of this claim. Accordingly, the defendant is directed to make Correction Officer Perry available to testify at trial without the necessity of a subpoena.

The next witness for whom the issuance of a subpoena is requested is Correction Officer E. Greenwood. Claimant states in his affidavit in support of the motion that Correction Officer Greenwood is the Facility Draft and Property Processing Officer. According to the claimant, Officer Greenwood's testimony is material and necessary to establish the nature of the property in claimant's possession upon his arrival at Great Meadow Correctional Facility as well as the property which he received from the Inspector General's Office. Inasmuch as Correction Officer Perry can testify regarding the property which was confiscated and returned, it appears that Correction Officer Greenwood's testimony would be cumulative and unnecessary to the prosecution of this claim.

Claimant also failed to establish that the testimony of Carol Green, the Inmate Records Coordinator, and Richard Potter, the Acting Superintendent of Great Meadow Correctional Facility, is material and necessary to the prosecution of this claim. Claimant avers that Ms. Green's testimony is necessary to establish "the records that were and were not filed in this matter within the facility" (claimant's affidavit in support of motion, ¶ 7). Such information is unnecessary to establish a bailment claim (see generally 7 NYCRR § 1700.7[b]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [1981]). Likewise, claimant indicates that the testimony of Acting Superintendent Potter is necessary to establish "the process and procedures he followed in complying with the DOCS . . . Directives 4910 (control of and Search for Contraband) and 2733 (inmate Personal Property Claim). However, claimant failed to establish that Acting Superintendent Potter has any personal knowledge regarding the procedures followed in this case and claimant himself can testify with regard to the events which transpired on the date his property was allegedly confiscated.

Based on the foregoing, claimant's motion is denied except to the extent of requiring the defendant to make Correction Officer Perry available for trial without the necessity of a subpoena.



April 15, 2009
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice of motion dated March 26, 2009;
  2. Affidavit of Ronald LaMountain sworn to March 26, 2009;
  3. Affirmation of Kent B. Sprotbery dated April 6, 2009 with exhibits.

[1]. The claim for mental duress and physical pain were omitted from the amended claim filed February 9, 2007.