Defendant's motion for judicial subpoena duces tecum denied. Subpoena is not a substitute for discovery.
|Claimant short name:||MACDONALD|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||E. STEWART JONES HACKER MURPHY, LLP
By: Ryan M. Finn, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Christina M. Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 25, 2017|
|See also (multicaptioned case)|
This claim alleges that claimant sustained injuries on November 3, 2015 at the Capital District DDSO when the stairs that he was walking on collapsed. Defendant seeks a "judicial subpoena duces tecum, pursuant to CPLR §§2301, 2302 & 3101 for the production of employment records and medical records relating to claimant's entry, participation and completion of the New York State Department Corrections and Community Supervision [NYS DOCCS] corrections academy" (Calabrese Affirmation, ¶ 2) by way of motion, which claimant opposes.
Defendant's submission in support of the motion demonstrates that in late July 2017, approximately six months after the filing of the Note of Issue and Certificate of Readiness, defendant received from claimant a medical record dated July 20, 2017 that indicated that claimant had a 22.5% total loss use of his right foot and had to use a brace when walking on uneven ground, and that he had recently completed the DOCCS Corrections Academy and was then employed as a correction officer. (see Calabrese Affirmation, ¶ 6; Exhibit A). Following receipt of that medical report, defendant requested that claimant provide a release for his employment and medical records that relate to his entry, participation and completion of the DOCCS Corrections Academy (see id. ¶ 8). Claimant refused to execute the authorizations, resulting in two court conferences during which the issue could not be resolved (see id., ¶ 9), and this motion ensued.
Defendant asserts that claimant testified at his deposition in September 2016 that the injury to his ankle causes him pain and that he has suffered subsequent limitations. Defendant argues that it defies common sense that claimant could complete the Corrections Academy training with his alleged ankle injury and that "[e]ither claimant did not disclose his ankle injury on his [DOCCS] application and/or claimant was able to successfully complete the medical entry exam and the training academy with such an injury" and that "[e]ither way, both are incredibly relevant to these proceedings as the same go squarely to claimant's credibility and injuries" (id., ¶ 8).
Claimant argues that defendant's request is overbroad and that defendant is attempting to improperly discover information that it failed to obtained in pre-trial discovery. Claimant further contends that a subpoena is not to be used as a discovery device to uncover evidence, and that defendant's request for a subpoena is a "fishing expedition aimed at uncovering what the Attorney General's office hopes will be favorable evidence" which "is an improper use and abuse of the subpoena process" (Finn Affirmation, ¶ 7). Claimant argues that defendant's submission is flawed because it relies upon a mischaracterization of his deposition testimony and his medical records, and that the disclosure of the records could cause annoyance and embarrassment to claimant.
"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. A mere showing that the record may potentially uncover relevant evidence is insufficient" (Bostic v State of New York, 232 AD2d 837, 839 [3d Dept 1996], lv denied 89 NY2d 807 ). Here, defendant speculates that the records may contain potentially relevant evidence, but it has not made the preliminary showing that the records sought actually contain the information it is seeking. Defendant's request is more in the nature of a discovery request, and indeed, defendant has noticed this motion as one seeking relief under CPLR 3101 (see Notice of Motion; Calabrese Affirmation, ¶ 2). Defendant's motion seeks discovery under the guise of a judicial subpoena and is therefore improper (see Matter of Decrosta v State Police Lab., 182 AD2d 930, 931 [3d Dept 1992] ["a subpoena duces tecum may not be used as a fishing expedition for the purpose of discovery or to ascertain the existence of evidence]; Bostic v State of New York, 232 AD2d at 839). Defendant is not without remedy as it could have sought post-Note of Issue discovery (see e.g., 22 NYCRR § 206.12 [c]), and the Court declines to issue a judicial subpoena duces tecum for information that does not fall within the proper scope of such subpoena.
Accordingly, it is
ORDERED, the defendant's motion number M-90950 is DENIED, without prejudice to a subsequent motion seeking other relief.
September 25, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 127410, filed January 25, 2016;
(2) Notice of Motion, dated August 22, 2017;
(3) Affirmation of Christina Calabrese, AAG, in Support, dated August 23, 2017, with Exhibits A-C;
(4) Affirmation of Ryan M. Finn, Esq., in Opposition, dated September 5, 2017.