New York State Court of Claims

New York State Court of Claims
LINER v. THE STATE OF NEW YORK, # 2010-015-169, Claim No. 113778, Motion No. M-78620

Synopsis

Claimant's motion for the issuance of judicial subpoenas to compel the attendance of witnesses at trial was denied.

Case information

UID: 2010-015-169
Claimant(s): JOSHUA LINER
Claimant short name: LINER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113778
Motion number(s): M-78620
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Joshua Liner, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
No Appearance
Third-party defendant's attorney:
Signature date: August 12, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an inmate proceeding pro se, moves for the issuance of judicial subpoenas to compel the attendance of one correction officer and three inmates for the purpose of providing testimony at trial.

The claim alleges causes of action relating to the loss of a hot pot at Livingston Correctional Facility on an unspecified dated, the loss of certain property at Great Meadow Correctional Facility on February 5, 2007, harassment occurring at Great Meadow Correctional Facility from February 2007 through March 2007, food deprivation for nine weeks at Comstock Correctional Facility and the loss of a sweatshirt on March 21, 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 [2004]; Sand v Chapin, 246 AD2d 876 [1998]; 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 completely failed to support his request for subpoenas with any explanation as to why the testimony of three inmates and one correction officer is necessary. While he avers that the inmates can substantiate the lost property and harassment claims which allegedly occurred at Great Meadow, this is insufficient to permit the Court to conclude their testimony is material and necessary to the prosecution of the claim. Claimant's request for a subpoena to compel the attendance of Officer C. Collins is similarly deficient, stating only that he is to be "called relevant to his role in the harassment claim" (claimant's affidavit, 4). On this scant information, the Court is unable to conclude that the testimony of the witnesses sought by the claimant is material and necessary to the prosecution of his claim.

Finally, the claimant has failed to support his motion with proposed subpoenas.

Accordingly, the claimant's motion is denied.

August 12, 2010

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Undated notice of motion filed August 3, 2010;
  2. Affidavit of Joshua Liner sworn to July 25, 2010.