3,4 Filed papers: Claim, Answer
No Opposition Filed
Miguel Tirado alleges in his claim that correction officers at Green Haven
Correctional Facility assaulted him in his cell on January 11, 2006, falsely
charged him with disciplinary violations resulting in his being sent to the
special housing unit, and then allowed his property to be either lost or
destroyed. He alleges that Officers Cefaloni, MacIsaac and Jerrel were his
assailants, and thereafter responsible for the destruction of his property.
Generally, since claimant is not a person authorized to issue a subpoena, he
must seek a Court order allowing the issuance of a subpoena upon proper motion
with regard to non-party witnesses. Chopak v Marcus, 22 AD2d 825, 826 (2d
Dept 1964), see Civil Practice Law and Rules §2302 (a) and (b).
Proposed subpoenas for the Court’s signature should accompany the motion.
Claimant has brought this motion seeking an Order directing the issuance of four
(4) trial witness subpoenas to Sergeant Kelly, C.O. Serrrell, C.O. MacIsaac,
C.O. Cefaloni, and inmate Derrick Williams 03-A-3981.
An affidavit indicating why the testimony of each witness is material and
necessary to the prosecution of the claim should be included, akin to the
pre-trial disclosure standards of materiality and necessity. See generally
Civil Practice Law and Rules §3101. The claimant should “spell
out (or provide an affidavit establishing) the anticipated testimony; establish
that the information the witness possesses is somehow unique and not merely
cumulative to what claimant will relate and/or what is recorded in any documents
concerning the incident, and establish that the information cannot be obtained
from another source.” Price v State of New York, 4 Misc 3d 1008(A)
(Ct Cl 2004).
Claimant indicates in his affidavit in support of the motion that the named
officers are still employed at Green Haven, and that inmate Williams is at Green
Haven and is claimant’s former cell mate. In the claim itself, and in the
papers attached to the claim that appear to be associated with a related inmate
grievance, and claimant’s personal property claim, there is no mention of
Derrick Williams, or any identification of him as having knowledge of the claim
beyond being claimant’s cell mate.
Although the present application is unopposed, it is nonetheless not clear how
Mr. Williams could provide material and relevant information as to the
allegations of the claim. Claimant has failed to establish that Mr.
Williams’ testimony is necessary, that it is not cumulative or that
whatever information he might provide cannot be established by other means. He
has also not established that Mr. Williams is “willing to testify”.
Ratliff v State of New York, UID # 2000-005-549, Claim No. 97309, Motion
No. M-62179 (Corbett, Jr., J, September 11, 2000).
In contrast, the claim and other documents identify some of the named
correction officers as the ones who assaulted him or mishandled his property.
With regard to Sergeant Kelly, there is no indication in the affidavit nor can
it be derived from the filed papers what his involvement might be.
Accordingly, since the identified officers are under the control of the
defendant as employees, defendant is hereby directed to make C.O. Serrell (or
Jerrell), C.O. MacIsaac, and C.O. Cefaloni available to give testimony at the
trial on May 15, 2009 without the necessity of a subpoena.