New York State Court of Claims

New York State Court of Claims

CLAUBERG v. THE STATE OF NEW YORK, #2009-015-178, Claim No. 112241, Motion No. M-76795


Claimant's motion to compel the defendant to provide the last known addresses of two former employees was granted in part and denied in part.

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:
Cronin & Byczek, LLPBy: Rocco G. Avallone, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 12, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves by order to show cause to compel the defendant to produce the last known addresses of Rick Tyler and Patricia Barrett in order to serve them with a subpoena to compel their attendance and give testimony in the trial of this matter scheduled for June 16, 2009. Claimant, a Correction Officer employed by the Department of Correctional Services (DOCS), alleges he was the victim of unlawful discriminatory conduct as the result of DOCS' policy and practice of allowing and condoning discriminatory conduct in the work place in violation of Human Rights Law (Executive Law § 296). As both Rick Tyler and Patricia Barrett are no longer employed by DOCS, defendant objects to the release of their last known addresses on the ground that it is prohibited from doing so in the absence of a Court Order pursuant to Public Officers Law § 96 and Labor Law § 203-d. Section 96 of the Public Officers Law prohibits disclosure of personal information by any State agency unless, among other reasons, it is pursuant to a court ordered subpoena or other compulsory legal process (Public Officers Law § 96 [1][k]). Section 203-d of the Labor Law likewise prohibits an employer from communicating personal identifying information to the general public.

As correctly noted by defense counsel, to obtain a judicial subpoena compelling the attendance of a non-party 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 ). Here, claimant's order to show cause is supported by an attorney's affirmation in which counsel states in only the most conclusory manner that the testimony of Patricia Barrett "will substantiate [claimant's] claim of retaliation and hostile work environment since she was present during some of the unlawful activity against claimant by his supervisor." In the Court's view, claimant failed to show that the anticipated testimony of Ms. Barrett is material and necessary to the prosecution of the claim.

With respect to the anticipated testimony of Mr. Tyler on the other hand, claimant submitted his examination before trial which establishes that his anticipated testimony may be material and necessary to the prosecution of the claim. Accordingly, defendant is directed to provide claimant's counsel with the last known address of Mr. Tyler by facsimile transmission and regular mail upon receipt of this Order.

June 12, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause dated June 10, 2009;
  2. Affirmation of Rocco G. Avallone dated June 9, 2009 with exhibits;
  3. Affirmation of Michele M. Walls dated June 11, 2009.