Opinion
# 2013-048-120 Claim No. 117034 Motion No. M-84254 Motion No. M-84255 Motion No. M-84256
12-04-2013
VICENTE PARIS v. THE STATE OF NEW YORK
Claimant's attorney: VICENTE PARIS, Pro Se Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Jessica Hall, Esq. Assistant Attorney General
Synopsis
The Court denied Claimant's motion seeking, among other things, relief related to the service of certain trial subpoenas and, with respect to Claimant's motion to compel discovery of a former inmate's last known address, directed Defendant to provide Claimant with an affidavit from an individual with personal knowledge regarding the information sought. The Court also granted Defendant's motion requesting that the trial of this action be bifurcated into two phases, a liability phase and a damages phase.
Case information
UID: 2013-048-120 Claimant(s): VICENTE PARIS Claimant short name: PARIS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117034 Motion number(s): M-84254, M-84255, M-84256 Cross-motion number(s): Judge: Glen T. Bruening Claimant's attorney: VICENTE PARIS, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Jessica Hall, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: December 4, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Vicente Paris, is seeking to recover damages for personal injuries sustained during an accident in the small gym weight room at Eastern Correctional Facility (Eastern) on June 5, 2008 where he was an inmate under the supervision of the Department of Correctional Services (DOCS). Specifically, Claimant alleges Defendant was negligent in allowing inmates to use an exercise bench that was improperly modified and defective. The trial of this action was scheduled to commence December 13, 2013 by video conference, with Claimant and Defendant appearing at Eastern and the Court at its Saratoga Springs courtroom, but was adjourned without date at Claimant's request (see Correspondence, dated November 22, 2013). Claimant has made two motions (M-84255 and M-84254) seeking, among other things, relief related to the service of certain trial subpoenas and to compel discovery. Defendant has also moved (M-84256) requesting that the trial of this action be bifurcated into two phases, a liability phase and a damages phase.
DOCS is now known as the Department of Corrections and Community Supervision (see L 2011, ch 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
Claimant's first motion (M-84255) seeks relief from the Court related to the anticipated trial testimony of four non-party witnesses: former DOCS inmate Hassan Nelson, and former DOCS employees Carpentry Vocational Instructor Cash, Correction Officer Whitehead and Welding Instructor Peter Hassel. First, Claimant seeks permission to serve these witnesses with trial testimony subpoenas by certified mail, return receipt requested, pursuant to CPLR 308 (5). Defendant does not object to this aspect of Claimant's application.
As background, by Decisions and Orders dated March 11, 2013 and September 10, 2013, this Court, among other things, granted Claimant's application for the issuance of the testimonial subpoenas of DOCS inmate Nicholas Panton (DIN 04-A-0311), former DOCS inmate Hassan Nelson, Deputy of Security Griffin, Sergeant Casler, Correction Officer Whitehead, Welding Instructor Peter Hassel, Carpentry Vocational Instructor Cash, Special Subjects Supervisor J. Novak or Recreational Department Hope Brown, and Doctor Douglas (see Paris v State of New York, UID No. 2013-048-109 [Ct Cl, Bruening, J., Sept. 10, 2013]; Paris v State of New York, UID No. 2013-048-089 [Ct Cl, Bruening, J., Mar. 11, 2013]). As of the September 10, 2013 Decision and Order, the record reflected that seven of the ten witnesses allowed were officers or employees of DOCS. However, as is relevant to Claimant's Motion No. M-84255, Defendant's counsel has since advised that Mr. Cash, J. Novak, Correction Officer Whitehead and Peter Hassel are either retired or no longer employed by DOCS (see Correspondence from Jessica Hall, Esq., dated September 27, 2013). By a Notice of Discovery/Inspection Demand dated November 1, 2013, Claimant is seeking the addresses of these former DOCS employees so that he may serve them with trial subpoenas.
Pursuant to CPLR 2303 (a), a subpoena is to be served in the same manner as a summons. As is relevant to Claimant's motion (M-84255), pursuant to CPLR 308, the common methods of effectuating personal service upon a natural person include delivery of the document to the person to be served (see CPLR 308 [1]), delivery of the document to a person of suitable age and discretion "at the actual place of business, dwelling place or usual place of abode of the person to be served" and a subsequent mailing of that document to the individual's last known residence or actual place of business (see CPLR 308 [2]), or if service cannot be made "with due diligence" by those methods, it can be accomplished by affixing the document to the door of the individual's "actual place of business, dwelling place or usual place of abode," and by a subsequent mailing to the individual's last known residence or actual place of business (CPLR 308 [4]). However, "CPLR 308 (5) vests a court with the discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308 (1), (2), and (4) are impracticable" (Safadjou v Mohammadi, 105 AD3d 1423, 1424 [4th Dept 2013] [internal quotation marks and citations omitted]). Such a showing will depend on the facts of a particular case, but "does not require proof of actual prior attempts to serve a party under the methods outlined pursuant to subdivisions (1), (2) or (4) of CPLR 308" (id. [internal quotations makes and citations omitted]).
In this case, because Claimant does not yet know the addresses of the potential witnesses, Claimant has not yet shown why it is impracticable for him to serve the subpoenas in the manner required by CPLR 308 (1), (2) or (4), upon former inmate Hassan Nelson, former Instructor Cash, former Officer Whitehead and former Instructor Hassel. Moreover, while Claimant states that his prison wages total $8.00 per month (see Correspondence, dated October 19, 2013), he has provided no evidence in admissible form to demonstrate a lack of resources and inability to effect service of the non-party subpoenas pursuant to CPLR 308 (1), (2), or (4) (compare Matter of Davis v Coughlin, 96 AD2d 682, 682 [3d Dept 1983]). Accordingly, the Court denies Claimant's request for alternative service of the non-party subpoenas on Hassan Nelson, and former DOCS employees Carpentry Vocational Instructor Cash, Correction Officer Whitehead and Welding Instructor Peter Hassel, without prejudice to renew once Claimant learns of their addresses and upon proper application.
In light of the outstanding discovery demand for the addresses of the former DOCS employees, the Court encourages Claimant and Defendant to stipulate to an alternative approach for securing the testimony of these witnesses.
In his Motion No. M-84255, Claimant also asks the Court to authorize the taking of non-party witness testimony by video or telephone, as a means for reducing his costs. Defendant does not object to this request. Initially, the Court will not permit these witnesses to testify by telephone because audio testimony alone deprives the Court of an important means for observing the testimony and demeanor of the witnesses. In order for a witness to appear by video connection, Claimant is required to secure a suitable location equipped with the required technology and provide at least six weeks advance notice to allow a video conference bridge to be established by the Office of Court Administration. The Court appreciates that, in light of the outstanding discovery demand, it is neither practicable to identify an alternative video location at this time, nor feasible to determine whether it would be less costly to Claimant than his paying the mileage reimbursement fees that he seeks to avoid by this request. Accordingly, this aspect of Claimant's application is also denied without prejudice to renew once Claimant learns of the addresses of the witnesses and is able to identify a properly equipped location from which his witnesses would be able to testify through a video conference bridge.
In Motion No. M-84255, Claimant also seeks permission to pay the daily witness fee and travel expense reimbursement to subpoenaed witnesses through encumbrance and periodic payments from his inmate account similar to the manner in which he is obligated to pay his filing fee to the Court. Defendant objects to this aspect of Claimant's application arguing that the daily witness fee and the mileage fee set by the statute does not adequately compensate a witness, and granting Claimant's request would deprive the witnesses of their statutory right to be compensated in advance. CPLR 2303 (a) provides, in relevant part that: "Any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day's witness fee" [underline added]. Last increased January 1, 1989, CPLR 8001 sets the daily witness fee at $15.00 and the traveling expense at 23 cents per mile. There is no provision for a waiver or reduction of the advance payment of the witness fee and travel expense. Moreover, the Court cannot enforce a subpoena where the witness fee and travel expense are "not tendered with the subpoena or before it was returnable" (see Matter of Jaggars v Scholeno, 6 AD3d 1130, 1131 [4th Dept 2004]). Moreover, DOCS Directive 2788, entitled "Collection & Repayment of Inmate Advances & Obligations" - which governs the establishing of an encumbrance against an inmate's prison account for an authorized advance - does not provide for an advance of witness fees and mileage costs (see DOCS Directive 2788 [Collection & Repayment of Inmate Advances & Obligations]). Accordingly, this aspect of Claimant's application is denied.
In Motion No. M-84255, Claimant seeks, in the alternative, an order directing DOCS to hold Inmate Nicholas Panton at Woodbourne Correctional Facility (Woodbourne) until he is called to testify. Claimant appears to be concerned that DOCS may move Inmate Panton to a facility further away from Eastern, thereby causing him to incur greater witness travel expenses. However, Claimant has already tendered the witness fee and travel expense to secure Inmate Panton's testimony at trial (see Correspondence dated November 12, 2013). Absent extraordinary circumstances, which are not present here, this Court will not direct DOCS to hold Inmate Panton at any particular facility. The determination of where to house an inmate is best left to the discretion of the Commissioner. However, because Inmate Panton was tendered the required witness fee and travel expense along with the Court issued subpoena, DOCS is obligated to produce Inmate Panton at trial from wherever Inmate Panton is located, without additional cost to Claimant. Accordingly, this aspect of Claimant's application is denied.
Claimant's second motion (M-84254) seeks an Order compelling Defendant to provide Claimant with Hassan Nelson's last known address. Defendant opposes Motion No. M-84254.
CPLR 3101 (a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." Accordingly, disclosure is required "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). When one party fails to respond to or comply with a discovery demand, the party seeking disclosure may move the Court to compel compliance (see CPLR 3124). However, information that is privileged or palpably improper, i.e. "irrelevant, overbroad and burdensome" is not subject to disclosure (DG&A Mgt. Servs., LLC v Securities Indus. Assn. Compliance & Legal Div., 78 AD3d 1316, 1318 [3d Dept 2010] [internal quotation marks and citations omitted]). As is relevant to the instant motion, it is Claimant's burden, as the party seeking disclosure, to establish "how the requested materials are relevant to the issues in the matter" (Davis v Cornerstone Tel. Co., LLC, 78 AD3d 1263, 1264 [3d Dept 2010] [internal quotation marks and citations omitted]; see Dempski v State Farm Mut. Auto. Ins. Co., 249 AD2d 895, 896 [4th Dept 1998]), while it is Defendant's burden, as the party challenging disclosure, to establish that the information sought is privileged or immune (see Marten v Eden Park Health Servs., 250 AD2d 44, 46-47 [3d Dept 1998]).
On June 3, 2013, Claimant served Defendant with a Notice of Discovery and Inspection demanding, among other things, Hassan Nelson's address so that Claimant could compel Mr. Hassan's testimony at trial. According to Defendant's counsel, Defendant responded by stating that it was unable to ascertain the identity of Hassan Nelson (see Affirmation of Jessica Hall, Esq., ¶ 5). Defendant's counsel states that Defendant continues to oppose the demand based on the same grounds and, without elaborating, states that, in any event, security and privacy concerns would prohibit release of the requested information if Mr. Nelson was under parole supervision.
A copy of Defendant's Response to Claimant's Notice of Discovery and Inspection was not attached to either the motion papers or Defendant's opposition papers. However, the papers of both Claimant and Defendant agree that, in response to Claimant's demand for Mr. Nelson's address, Defendant stated that it could not ascertain that individual's identity.
A search of the Department of Corrections and Community Service Inmate Population Information Search website does not list an individual by the name of Hassan Nelson (see http://nysdoccslookup.doccs.ny.gov/kinqw00 [accessed November 20, 2013]; https://www.parole.ny.gov/lookup.html [accessed December 4, 2013]). The Court notes that William Brown, Superintendent of Eastern Correctional Facility was the respondent in a successful habeas corpus proceeding commenced by a "Hassan Nelson" (Nelson v Brown, 673 F Supp 2d 85 [ED NY 2009]). The Court cannot confirm that this is the same individual that Claimant believes was a witnesses to the June 5, 2008 accident. However, because the trial has been adjourned without date, the parties will be able to conduct further discovery to clarify these inconsistencies.
Hassan Nelson is identified by Claimant as the only individual who, among other things, witnessed how the accident occurred. The Court has already concluded that Mr. Nelson's testimony is material and necessary to the prosecution of this Claim (see Paris v State of New York, UID No. 2013-048-089 [Ct Cl, Bruening, J., Mar. 11, 2013]). While "a party cannot be compelled to produce [evidence] that do[es] not exist" (Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032 [3d Dept 2012]), Defendant has not submitted a statement, made under oath, by someone who is charged with the duty of maintaining the facility's records regarding the accident and the identity of inmates who resided at Eastern on the date of the accident. Thus, the Court concludes that Defendant's opposition to Claimant's Motion No. M-84254 is inadequate and that Claimant is entitled such a statement (see e.g. Wilensky v JRB Mktg. & Opinion Research, 161 AD2d 761, 763 [2d Dept 1990]).
Finally, based on Claimant's consent (see Correspondence, dated November 22, 2013), the Court grants Defendant's motion (M-84256) to bifurcate the trial of this action.
Accordingly, it is hereby
ORDERED that Claimant's Motion No. M-84255 is denied without prejudice to renew consistent with this Decision and Order; and it is further
ORDERED that, to the extent that Claimant's Motion No. M-85254 seeks to compel Defendant to provide Claimant with Hassan Nelson's last known address, Defendant is directed to file with the Court and serve on Claimant, within thirty (30) days of the filing of this Decision and Order, a statement made under oath, by an employee or officer of Defendant with knowledge of DOCS records relating to the accident and to the identity of inmates residing at Eastern on the date of the accident who, after a search of such records, can attest that no individual named or known as Hassan Nelson was housed at Eastern at that time or, Defendant shall, within thirty (30) days of the filing of this Decision and Order, provide Claimant and the Court with that individual's last known address; and it is further
ORDERED that Defendant's Motion No. M-84256, requesting that the trial of this action be bifurcated into a liability phase and a damages phase, is granted.
December 4, 2013
Albany, New York
Glen T. Bruening
Judge of the Court of Claims
The following papers were read and considered by the Court:
Correspondence from Jessica Hall, Esq., dated September 27, 2013;
Correspondence from the Court, dated October 9, 2013;
Correspondence from Jessica Hall, Esq., received November 1, 2013 [M-84256];
Correspondence from the Court, dated November 8, 2013;
Correspondence from Claimant, filed November 7, 2013 [M-84255][with attached Correspondence, dated November 1, 2013 addressed to Jessica Hall, Esq, Correspondence, dated November 1, 2013 addressed to Judge Glen T. Bruening, Correspondence, dated October 19, 2013, Correspondence, dated September 27, 2013, Notice of Discovery and Inspection, dated November 1, 2013, Judicial Subpoena to Produce a Prisoner, signed by Glen T. Bruening on October 9, 2013, and an Affidavit of Service, sworn to on November 1, 2013];
Correspondence from Claimant, received November 14, 2013, with attached disbursement requests;
Notice of Motion to Compel Witness Name and Address [M-84254], filed November 7, 2013;
Affidavit of Vicente Paris [M-84254], sworn to on November 1, 2013, with Exhibit A;
Affirmation of Jessica Hall, Esq., dated November 15, 2013, with Exhibits A-B;
Correspondence from Claimant, received November 18, 2013, with attached Affidavit of Service, sworn to on November 12, 2013;
Correspondence from Claimant, dated November 22, 2013.