Motion for the attendance of witnesses at trial granted to limited extent.
|Claimant short name:||KOEHL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Edward Koehl, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 15, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves for an Order compelling the attendance of three correction officers to testify at trial, the production of any relevant papers and documents and to expedite the trial of this matter due to the claimant's physical condition.
The claim is for damage to several items of personal property which were allegedly destroyed during the course of a two-hour cell search conducted by Correction Officers M. Molisani and R. Therrin on February 13, 2007.
Pro se litigants are not included among those who are authorized to issue a subpoena (CPLR 2302 [a]). To obtain a judicial subpoena compelling the attendance of a 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 ; Sand v Chapin, 246 AD2d 876 ; 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).
Claimant avers that the testimony of Correction Officers M. Molisani, R. Therrin and K. Copeland is material and necessary to the prosecution of this claim in that all three individuals have personal knowledge of the facts underlying the claim. Although claimant contends in only the most conclusory manner that the testimony of these officers is material and necessary to the prosecution of his claim, review of the claim and various discovery documents filed in connection therewith indicate that Correction Officers Molisani and Therrin were responsible for the search of the claimant's cell which allegedly resulted in damage to his personal property. These officers may, therefore, have information material and necessary to the prosecution of the claim. Accordingly, the defendant is directed to make Correction Officers Molisani and Therrin available to testify at trial without the necessity of a subpoena. However, the need for the attendance of Correction Officer K. Copeland at trial is not apparent from the claim nor the discovery filed in connection with the claim. Claimant's request for an order compelling his attendance at trial is therefore denied.
Claimant's request that the proposed witnesses be compelled to "produce all documents, papers, etc., relating to claims" is denied (affidavit of Edward Koehl sworn to May 3, 2010, ¶ 2). The proper procedure for obtaining documents from a party is the service of a notice for discovery in accordance with the requirements of CPLR 3101 and 3120 (Matter of Murray v Hudson, 43 AD3d 936, 937 ).
To the extent claimant requests a trial preference based upon his physical condition, the request is denied based upon his failure to support the request with medical records.
Based on the foregoing, claimant's motion is granted to the limited extent of requiring the defendant to make Correction Officers Molisani and Therrin available for trial without the necessity of a subpoena.
July 15, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: