New York State Court of Claims

New York State Court of Claims
ALLAWAY v. THE STATE OF NEW YORK, # 2010-030-532, Claim No. 114865, Motion No. M-78069


Motion by claimant, an inmate proceeding pro se, for issuance of trial witness subpoenas for inmate witnesses granted in part. Defendant is directed to either produce the inmate witness on the trial date, or provide an order to produce directed to the correctional facility in which the witness is currently housed for execution by the Court since defendant will not provide housing location for security reasons. No cost for transportation and security to be charged, since inmates are moved between facilities by department van all the time.

Case information

UID: 2010-030-532
Claimant short name: ALLAWAY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114865
Motion number(s): M-78069
Cross-motion number(s):
Claimant's attorney: WABERLY ALLAWAY, PRO SE
Third-party defendant's attorney:
Signature date: April 7, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered on claimant's motion for the issuance of trial witness subpoenas pursuant to Civil Practice Law and Rules 2302(b) for the production of three (3) inmate witnesses:

1-6 Notice of Motion for Subpoena to Compel Attendance of Prisoner at Trial of Action; Affidavit in Support of Motion for Subpoena to Compel Attendance of Prisoner at Trial of Action by Waberly Allaway, Claimant sworn to March 22, 2010; proposed subpoenas; Affidavits by Ameer Lawson (#98-A-1435), Billy McKinney (#93-A-4945) and Robert McKenzie (#98-A-4749)

7 Affirmation by Barry Kaufman, Assistant Attorney General

8,9 Filed Papers: Claim, Answer

Waberly Allaway alleges in his claim that defendant's agents at Green Haven Correctional Facility [Green Haven] negligently allowed a dangerous condition to exist in claimant's cell causing him injury. [Claim Number 114865, 4]. He alleges that the window above his bed did not have a proper latch to secure it, that he gave notice to personnel of the defect, and that on October 22, 2007, while he was sleeping, the home-made latching device made by the previous inmate broke and hit him in the face causing him injury [Ibid. 7, 8, 11].

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. Chopak v Marcus, 22 AD2d 825, 826 (2d Dept 1964), see Civil Practice Law and Rules 2302 (a) and (b). Proposed subpoenas for the Court's signature should accompany the motion. Pursuant to this Court's instructions, [see Letters to Claimant dated February 24, 2010 and March 4, 2010], claimant has brought this motion seeking the issuance of three (3) trial witness subpoenas directing production of inmate witnesses.

An affidavit indicating why the testimony of each witness is material and necessary to the prosecution of the claim should be included, akin to the pre-trial disclosure standards. See generally Civil Practice Law and Rules 3101. More than "mere relevance" is necessary. See Price v State of New York, 4 Misc 3d 1008(A)(Ct Cl 2004). The movant should show

"the anticipated testimony; establish that the information the witness possesses is somehow unique and not merely cumulative to what claimant will relate and/or what is recorded in any documents concerning the incident, and establish that the information cannot be obtained from another source . . ."

In the present motion(1) , claimant states that the testimony is "material and necessary on the trial of this action because these witnesses have provided me with Affidavits that support the facts of my claim . . ." [Affidavit in Support by Waberly Allaway, Claimant, 5]. Additionally, the individual affidavits of each proposed witness attached to the motion set forth the anticipated testimony.

Inmate Ameer Lawson states that he heard a loud bang on October 21, 2007, heard claimant calling for a correction officer and yelling that his window had just fallen on him, and states that "from the very first day of when Mr. Allaway moved into J-1-35 cell, he had been complaining to the C.O.s that: . . 'the window is messed up' which I heard many times." [Affidavit of Truth by Ameer Lawson, sworn to January 22, 2008].

Inmate Billy McKinney avows that he was a prior tenant of the cell occupied by claimant who moved out of the cell "sometime at the end of September or the beginning of October 2007." [Affidavit of Truth by Billy McKinney, sworn to April 15, 2008]. He states that upon entering the cell, he "immediately notice[d] that the chain was not attached to the window where it [is] suppose[d] to be. I also notice[d] a shoe string tied to the window preventing it from falling down. Out of concern for my safety I informed various j-block officers about the defective cell window but, to no avail nothing was done about it." [Id.]. He writes that he heard about claimant's "unfortunate incident" "sometime after" he had moved into a different cell. [Id.].

Finally, Robert McKenzie, an inmate working as a nurse's aide at Green Haven on October 22, 2007, writes that he responded to claimant's cell on October 22, 2007 and observed claimant "bleeding profusely from a head injury." [Affidavit of Truth by Robert McKenzie, sworn to February 24, 2010]. He writes that claimant "informed Ms. Bowden and security staff that the window swung open and bust him in the head when he was sleeping," and that an unnamed officer "took several pictures of the window latch and the blood spills" and later took photographs of claimant's injuries. [Id.].

Defendant opposes the issuance of subpoenas asserting, among other things, that proposed subpoenas were not included (which they were), and that claimant has not submitted an affidavit adequately explaining why the testimony is material, necessary and non-cumulative. [Affirmation by Barry Kaufman, Assistant Attorney General, 2]. Additionally, defendant's attorney states that after "a conversation" with the New York State Department of Correctional Services' [DOCS'] counsel's office (no affidavit by someone with knowledge is annexed), he learned that without a ten (10) day lead time to transport any inmate witness, the cost for such transportation and security is $3,000.00 per inmate, and asks that such costs be paid by claimant in advance. [Ibid. 1 and 3]. Counsel also does not indicate the location of the one inmate, Billy McKinney, whose location claimant does not know, because of DOCS' policy regarding not disclosing inmate locations to other inmates. [Ibid. 3]. Impliedly, Mr. McKinney is still in DOCS' custody and his location is known to defendant.

After careful review of the claim, the answer, and the affidavits made by the proposed witnesses as to what they would testify about, while both Mr. Lawson and Mr. McKenzie would only provide cumulative evidence that claimant himself could provide, as well as information available from other sources (i.e.: medical records, or facility reports), Mr. McKinney could provide material and relevant information as to notice or constructive notice and the conditions in claimant's cell. Claimant has satisfactorily established that the testimony of inmate witness Billy McKinney, is material, relevant and necessary.

The trial date is hereby adjourned to May 14, 2010, given the perceived cost and time constraints counsel for defendant represents he was informed of in order to produce Mr. McKinney for trial on April 16, 2010.

Since counsel for the defendant has expressed a reluctance to reveal the current address for Mr. McKinney to Mr. Allaway, but has implied that he is still in DOCS' custody, the defendant is therefore directed to produce Mr. McKinney on May 14, 2010, the adjourned date for the trial of this claim. If an Order to Produce directed to the Superintendent of the correctional facility is necessary, then defendant is directed to provide an Order to Produce for the Court's signature within ten (10) days of the filing date of this decision and order, and to see to it that the Order is then delivered to the facility. No transportation costs are to be charged since there is sufficient lead time, and inmates in State custody are transported between correctional facilities all the time, using departmental vans and regularly assigned correctional personnel.

Accordingly, Claimant's motion for the issuance of a subpoena [M-78069] is hereby granted as set forth above.

April 7, 2010

White Plains, New York


Judge of the Court of Claims

1. Additionally, the motion appears to seek certain document disclosure, already the subject of motion practice before this Court [see Allaway v State of New York, Claim No. 114865, Motion No. M-77653, unreported, (Scuccimarra J., February 2, 2010)], but this aspect of the motion is not addressed with any argument by claimant. If defendant has not responded to the discovery requests that the Court already directed should be responded to, then claimant may certainly make an appropriate application at trial. See generally Civil Practice Law and Rules 3126.