Motion for subpoenas by inmate claimant proceeding pro se granted in part. Defendant directed to produce listed employee witnesses without the necessity of a subpoena. Documents requested were produced.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||JOSE RODRIGUEZ, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||March 29, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion for issuance of a subpoena duces tecum and for production of trial witnesses:
1,2 Notice of Motion for Subpoena to Compel production of original record; Affidavit in Support of Motion for Subpoena to compel production of original record by Jose Rodriguez, Claimant and attached papers
3,4 Correspondence from Claimant to the Court dated February 5, 2010; Correspondence from the Court to the Claimant dated February 9, 2010
5 Affirmation in Opposition to Issuance of Subpoena for Original Records by Jeane L. Strickland Smith, Assistant Attorney General (enclosing sealed certified records)
6-8 Filed papers: Claim, Answer; Rodriguez v State of New York, Claim No. 110270, Motion No. M-69693, unreported, (Mignano, J., March 15, 2005)
Jose Rodriguez alleges in his claim that a May 29, 2004 flooding event at Fishkill Correctional Facility [Fishkill] emanating from a defective toilet in the correction officer's bathroom on the 8-2 recreation unit caused damage to property in his cell. He asserts that he filed an institutional claim on June 1, 2004, that was thereafter assigned for investigation to Lieutenant Joseph Pataro, and that on July 7, 2004 his claim was denied. On August 20, 2004 claimant's superintendent's appeal was approved to the extent of offering $4.22, representing food items, in full settlement of his claim for over $3,000.00 of damaged property including trial transcripts. It is unclear from the papers whether a further appeal followed, or judicial review followed. Among the allegations are that correction officials failed to adequately investigate the damage claim and deliberately under reported the damage to claimant's property, and these individuals and their roles are described in the verified claim.
In its answer, in addition to general denials, defendant raised several affirmative defenses, that were the subject of prior motion practice by claimant, resulting in an order preserving same. [See Rodriguez v State of New York, Claim No. 110270, Motion No. M-69693, unreported, (Mignano, J., March 15, 2005)].
The present motion seeks an order issuing a subpoena duces tecum for various maintenance records, and internal memoranda, most of which appear to have already been produced during discovery and were attached, in uncertified form, to the claim.
Generally, since claimant is not a person authorized to issue a subpoena, he must seek a Court order allowing the issuance of a subpoena upon proper motion for non-party witnesses, including fellow inmates. See Civil Practice Law and Rules §2302 (a) and (b). Proposed subpoenas for the Court's signature should accompany the motion. The Court may direct the appearance of employee witnesses without the necessity of a subpoena upon a proper showing.
Defendant has submitted papers in opposition to that aspect of claimant's motion seeking production of original records, and has appended certified copies of the records requested.
After careful consideration of the papers submitted on the motion, the verified pleadings, and the issues raised therein, and prior correspondence concerning employee witnesses, which had been forwarded to defendant's counsel by the Court to give notice to the State of the claimant's request for production of same without the necessity of a subpoena, the Court is satisfied, that the documents and the testimony of the employee witnesses is material and necessary to the prosecution of his claim. See Civil Practice Law and Rules §3101. Claimant's motion is granted to the extent that the defendant is directed to produce employee witnesses without the necessity of a subpoena, but is otherwise denied as moot given defendant's production of certified records to be produced at the prison trial term on April 23, 2010.
Additionally, the Attorney General's Office is directed to produce without the necessity of a subpoena for testimony at trial the following State employees:
(1) Correction Officer G. Peete
(2) Sergeant Q. Rama
(3) Lieutenant Joseph Pataro.
March 29, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims