Defendant was ordered to produce claimant's medial and mental health records for trial.
|Claimant short name:||MURRAY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||111694, 112562|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Joel Murray, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 22, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, moves for issuance of a subpoena duces tecum to compel the defendant to produce, for trial, certified medical and mental health records relating to treatment he received while in the custody of the Department of Correctional Services (DOCS).
In claim number 112562 claimant alleges causes of action for negligence arising from the defendant's failure to provide proper medical treatment and a bottom bunk bed. The claim alleges claimant was injured on two separate occasions when he fell while ascending to the upper bunk bed. Claim number 111694 asserts causes of action for malpractice and negligence arising from the defendant's alleged failure to timely and properly treat him for a stomach condition he alleges was caused by "H. Pylori" (amended claim no. 111694, ¶ 3).
The purpose of a subpoena duces tecum is "to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding" (Matter of Niagara Mohawk Power Corp. v Town of Moreau Assessor, 8 AD3d 935, 937  [internal quotation marks and citation omitted]). However, because pro se litigants are not included among those who are authorized to issue a subpoena, issuance by the court is required (CPLR 2302 [a]). "In order for a court to issue a subpoena duces tecum, the party seeking the subpoena must make a preliminary showing that the record requested actually contains the information that he or she seeks to obtain" (Bostic v State of New York, 232 AD2d 837, 839 , lv denied 89 NY2d 807 ). Inasmuch as a subpoena may not be used to ascertain the existence of evidence, it is necessary that the movant establish " 'some factual predicate' " upon which to conclude that the information sought is likely contained in the records requested (Id. at 839, quoting People v Gissendanner, 48 NY2d 543, 550 ).
Here, the defendant does not contest claimant's assertion that his medical and mental health records are material and relevant to the prosecution of the claims. Moreover, defendant has agreed to provide the claimant's medical and mental health records at the time of trial and "waive any objection to foundation or authenticity" (Affirmation of Glenn C. King dated December 15, 2010, ¶ 6). To the extent claimant seeks a subpoena for the production of certified medical and mental health records or witnesses to lay a foundation for the admission into evidence of these records it is, therefore, unnecessary. Accordingly, defendant is hereby ordered to provide the claimant's medical and mental health records at the time of trial and claimant's motion is denied.
December 22, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: