Claimant's motion for an order permitting service of subpoena on an incarcerated person for deposition and/or trial testimony is denied where claim was filed nearly six (6) years ago, claimant asserted readiness for trial nearly ten (10) months ago, claimant previously obtained adjournment of trial for purpose of securing testimony of a non-incarcerated witness without requesting newly demanded incarcerated person testimony and where claimant has failed to show the materiality and necessity of the demanded incarcerated person testimony.
|Claimant short name:||PLATT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MICHAEL PLATT
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Belinda Wagner, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 15, 2021|
|See also (multicaptioned case)|
Claimant moves, on September 17, 2021, for a court-ordered subpoena directing defendant to produce an incarcerated person for deposition and/or trial testimony regarding claimant's medical malpractice claim, which is scheduled for trial on November 3, 2021.
The defendant opposes the motion.
The claim was served on January 4, 2016 and seeks recovery for defendant's alleged medical malpractice in failing to adequately diagnose and treat claimant's chronic skin condition while claimant was incarcerated and under defendant's custody, care and control.
Claimant's motion is denied.
CPLR 2302 (b) provides that a "subpoena to compel . . . attendance of any person confined in a penitentiary or jail, shall be issued by the court."
In Sebastiano v State of New York (112 Misc 2d 1027, 1028 [Ct Cl 1981]), the court explained that the CPLR 2302 requirement of a court-ordered subpoena with respect to an incarcerated person:
"[I]s to permit the court to exercise discretion in requiring the attendance of prisoners at a trial. A court should not, without a compelling necessity, require the Department of Correctional Services to transport 12 prisoners to a central point from such widely separated locations as Clinton, Greenhaven, Great Meadow, Sing Sing, Eastern and Auburn. The security problem is serious and the expense would be burdensome to the taxpayers of the State of New York."
The burdens imposed on a correctional facility, and taxpayers, in producing incarcerated persons for pre-trial deposition testimony is no less significant with respect to testimony at trial.
It is the claimant's burden to show that the testimony of the requested incarcerated person is "necessary to the prosecution of his claim" (Ramirez v the State of New York, [Ct Cl, Hard, J., #2006-032-049; Claim No. 105701, Motion No. M-71478, June 13, 2006]; Livingston v State of New York, 267 AD2d 972 [4th Dept 1999]).
Claimant states that the incarcerated person is a "necessary material witness" because the requested witness "has first hand knowledge, testimony and attestation of the injuries and suffering sustained, alleged in the claim, that could not be obtained from any other sources at this time."
Initially, the Court notes that claimant himself can testify to the nature of his own injuries and suffering allegedly caused by defendant's purported failure to adequately diagnose and treat claimant's chronic skin condition.
Next, the Court notes that the claim has been pending for nearly six (6) years without claimant seeking the testimony of the incarcerated witness. The Court further notes that at a January 28, 2021 conference claimant stated that he was prepared for trial and a trial date of April 19, 2021 was scheduled.
On April 8, 2021, a pre-trial conference was held in which claimant requested, and obtained, an adjournment of the April 19, 2021 trial date for the sole purpose of attempting to subpoena the trial testimony of a doctor who had treated claimant for his chronic skin condition.
On April 22, 2021, trial was rescheduled for November 3, 2021. Yet it was not until September 9, 2021 that claimant stated his intention to subpoena the testimony of an incarcerated person. As set forth above, the present motion seeking such testimony was not made until three weeks later, on September 30, 2021.
Claimant has failed to show that the requested incarcerated person deposition and/or trial testimony is a "compelling necessity" (Sebastiano, 112 Misc 2d at 1028) to the prosecution of his claim, especially in view of claimant's delay in seeking such testimony, and further, is in contradiction to the cost and security issues presented to the defendant.
Claimant's motion for leave to depose and/or subpoena an incarcerated witness on the eve of trial is denied.
October 15, 2021
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion for Leave to Take Deposition of Prisoner, filed September 20, 2021;
2. Affidavit of Michael Platt in Support for Leave to Take Deposition of Prisoner, sworn to September 15, 2021, and attached copy of claim;
3. Affirmation in Opposition of Belinda A. Wagner, dated September 28, 2021;
4. Reply "Affidavit" of Michael Platt dated October 11, 2021.