New York State Court of Claims

New York State Court of Claims

TIRADO v. THE STATE OF NEW YORK, #2009-030-530, Claim No. 113268, Motion No. M-76548


Synopsis


Motion by inmate claimant for issuance of trial witness subpoena to fellow inmate denied because claimant did not establish materiality, relevance and necessity. Defendant directed to produce the identified correction officers at trial without the necessity of a subpoena as State employees.

Case Information

UID:
2009-030-530
Claimant(s):
MIGUEL TIRADO
Claimant short name:
TIRADO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113268
Motion number(s):
M-76548
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
MIGUEL TIRADO, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
April 30, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant’s motion for trial witness


subpoenas:

1,2 Notice of Motion, Affidavit in Support of Motion by Miguel Tirado, claimant

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.

April 30, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims