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
“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.