New York State Court of Claims

New York State Court of Claims

SHEPHERD v. THE STATE OF NEW YORK, #2009-040-034, Claim No. 108681, Motion No. M-76476


Claimant’s request for a subpoena ad testificandum denied.

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:
Eon Shepherd, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Claimant’s motion for a subpoena ad testificandum is denied.

Claimant filed a Claim with the Clerk of the Court on December 22, 2003, the State filed a Verified Answer on January 26, 2004. Claimant then filed an Amended Claim on February 4, 2004 and Defendant filed a Verified Answer to the Amended Claim on March 17, 2004. The Amended Claim asserts that, on or about October 10, 2003, Claimant was transferred to Upstate Correctional Facility (Upstate) located in Malone, New York. It is alleged that a “chain and cross [Claimant] received from his grandmother” (Amended Claim, ¶ 5) was negligently confiscated as contraband and was ordered destroyed on October 24, 2003. It is also asserted that Claimant filed an administrative appeal and that the appeal was denied on December 15, 2003. It is further alleged that Claimant did not receive adequate medical treatment and that he was negligently denied use of his cane and knee brace.

By this motion, Claimant seeks to subpoena inmate Vernon Jackson to testify at the May 28, 2009 trial of this matter. Claimant, as an inmate proceeding pro se, is not a person authorized to issue subpoenas and must, therefore, apply to the “clerk of the court” or to an appropriate judge for issuance of the subpoenas (CPLR 2302[a]). With respect to the subpoena of an inmate, CPLR 2302(b) provides that a “subpoena to compel . . . attendance of any person confined in a penitentiary or jail, shall be issued by the court.”

“It is the claimant’s burden to show that the testimony of the requested [non-party witnesses] is ‘necessary to the prosecution of his claim’ ” (Medina v State of New York, Ct Cl, Claim No. 109178, Motion No. M-73412, August 4, 2008, Ferreira, J. [UID No. 2008-039-089], quoting Hall v State of New York, Ct Cl, Claim No. 107826, Motion No. M-74183, November 7, 2007, Milano, J. [UID No. 2007-041-052]; quoting Ramirez v State of New York, Ct Cl, Claim No. 105701, Motion No. M-71478, June 13, 2006, Hard, J. [UID No. 2006-032-049]).

Claimant asserts that Mr Jackson’s attendance is necessary to elicit testimony that the State allowed Mr. Jackson to have a knee brace and crutches as a result of his medical condition. Based upon this statement, the Court cannot find that Claimant has established that the witness’ testimony would be material and relevant to the issue of the State’s alleged negligent conduct with respect to Claimant. The fact that one inmate was allowed a knee brace and crutches while another was not allowed a knee brace and a cane is not proof of negligence on the State’s part. There may be various reasons, both medical and security related, why Mr. Jackson was allowed the knee brace and crutches. The fact that Mr. Jackson was allowed his crutches and knee brace is not any evidence that the State was negligent in not allowing Claimant to have his cane and knee brace. In addition, it appears that Mr. Jackson’s testimony would be cumulative, as Claimant can testify as to things he observed including that Mr. Jackson had crutches and a knee brace. Therefore, the motion to subpoena inmate Vernon Jackson is denied.

April 23, 2009
Albany, New York

Judge of the Court of Claims

The following papers were read on Claimant’s motion for a subpoena ad testificandum :

Papers Numbered

Notice of Motion, Affidavit in Support
papers attached 1

Affirmation in Opposition 2

Filed Papers: Claim, Answer, Amended Claim, Answer to Amended Claim