Opinion
# 2013-015-450 Claim No. 119422 Motion No. M-83752
10-03-2013
JAMES R. PINE v. THE STATE OF NEW YORK
Claimant's attorney: James R. Pine, Pro Se Defendant's attorney: Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General
Synopsis
Pro se inmate's motion for the issuance of subpoenas was granted in part.
Case information
UID: 2013-015-450 Claimant(s): JAMES R. PINE Claimant short name: PINE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119422 Motion number(s): M-83752 Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's attorney: James R. Pine, Pro Se Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Anthony Rotondi, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: October 3, 2013 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case)
Decision
Claimant, a pro se inmate, moves for the issuance of trial subpoenas and to compel the defendant to provide certain items of discovery.
Claimant seeks damages for injuries allegedly sustained on November 2, 2009 when he slipped on water and fell in the metal furniture shop of Great Meadow Correctional Facility (Great Meadow). Claimant avers that following the incident, he was evaluated by the medical staff at Great Meadow and taken to Glens Falls Hospital where he was treated for a fractured hip.
Claimant requests trial subpoenas to compel the attendance of four inmate witnesses, two physicians, three nurses and the furniture shop supervisor at trial. Claimant avers that the testimony of inmates Eugene Murphy and Brian Bennet is material and necessary to the prosecution of his claim as both of these inmates were eyewitnesses to his accident and, in addition, inmate Bennet is expected to testify regarding the wet condition of the floor on prior occasions. The testimony of inmate Richard Frejomil is requested inasmuch as he allegedly observed the claimant and the condition of the floor immediately after the incident. Inmate David Carpenter's testimony is sought as he was the Shop Porter who allegedly notified Kevin Hart, the Shop Supervisor, of the dangerous condition of the floor on prior occasions.
While claimant indicates this witness' last name is spelled "Bennet", the last name is spelled "Bennett" on the DOCCS website.
Claimant also seeks the issuance of trial subpoenas to compel the attendance of the following medical professionals: Dr. David Karandy, a physician at Great Meadow; Dr. Paul Alagna, a physician at Glens Falls Hospital, and nurses S. Miller, Kellie E. Gauthier, and D.H. Thompson, all of whom, claimant avers, treated him at Great Meadow.
Lastly, claimant seeks the issuance of a trial subpoena to compel the attendance of Kevin Hart, the Shop Supervisor whose testimony claimant contends is necessary to establish the rules and regulations governing operation of the shop where claimant was injured and to confirm that he was advised by inmate porter, David Carpenter, of the "potential safety hazard pertaining to water on the floor in the slop sink area" (claimant's affidavit in support dated July 16, 2013, ¶ 4 [J]).
With respect to claimant's request to compel discovery, he seeks a current photograph of the area of the accident depicting the post-accident placement of a non-slip mat, receipts for the purchase of the mat and Great Meadow's employee manual which allegedly requires employees to whom inmates are assigned for work to "comply with the safety, fire and facility rules . . . in a reasonable manner" (claimant's "Affidavit in Support" served July 16, 2013, ¶ 7) .
Defendant opposes the motion on the grounds that claimant's own testimony, together with the availability of his medical records, renders the testimony of any other witnesses unnecessary. Defendant avers that claimant can testify to the happening of the accident, the condition of the floor and the fact that he allegedly provided notice of the condition of the wet floor prior to the accident. Moreover, defense counsel avers, based upon information and belief, that inmate Frejomil is deceased, inmate Bennet was "discharged" from State custody and that Kevin Hart, the Shop Supervisor, is no longer employed by the defendant.
With respect to claimant's discovery requests, defendant contends that evidence of post-accident remedial repairs is inadmissible and that it is not required to create documents or, as is the case here, photographs in order to comply with discovery. With respect to the claimant's request for the production of the employee manual, defense counsel avers claimant appears to already possess it.
Pro se litigants are not included among those who are authorized to issue a subpoena and a judicial subpoena is necessary to compel the attendance of a person confined in a penitentiary or jail (CPLR 2302 [a] and [b]); (Moley v State of New York, UID No. 2006-037-024 [Ct Cl, Moriarty, J., Oct. 2, 2006]). To obtain a judicial subpoena compelling the attendance of a nonparty witness at trial, it is not enough to show that the anticipated testimony is material, "it must also be shown that the information sought cannot be obtained from another source" (Caruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502, 1506 [3d Dept 2011]; see American Heritage Realty LLC v Strathmore Ins. Co., 101 AD3d 1522 [3d Dept 2012]; Vorys v Camp Menawa, LLC, 91 AD3d 1167 [3d Dept 2012]; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 80 AD3d 199 [3d Dept 2010]; Cerasaro v Cerasaro, 9 AD3d 663 [3d Dept 2004]; Sand v Chapin, 246 AD2d 876 [3d Dept 1998]; Porter v State of New York, UID No. 2006-030-582 [Ct Cl, Scuccimarra, J., Nov. 22, 2006]).
Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.
Whether the witness testimony sought to be obtained by virtue of the subpoenas is material and necessary to the prosecution of a claim requires an evaluation of the proof necessary for the claimant to prevail. In order to establish a prima facie case against a landowner for injuries resulting from a dangerous condition on its premises, it must be established that the owner created the dangerous condition or had actual or constructive notice of its existence (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Constructive notice can be established through evidence that the defendant "was aware of an ongoing and recurring unsafe condition which regularly went unaddressed" (Kivlan v Dake Bros., 255 AD2d 782, 783 [3d Dept 1998]; see also Talavera v New York City Tr. Auth., 41 AD3d 135, 136 [1st Dept 2007]). As a result, where "a property owner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he [or she] is charged with constructive notice of each specific recurrence of that condition " (Mazerbo v Murphy, 52 AD3d 1064, 1066 [3d Dept 2008], appeal dismissed11 NY3d 770 [2008] [internal quotation marks and citation omitted]; Columbo v James River, II, Inc., 197 AD2d 760, 761 [3d Dept 1993]; Weisenthal v Pickman, 153 AD2d 849, 851 [2d Dept 1989]). Here, claimant avers that the testimony of inmates Murphy, Frejomil, Bennet and Carpenter is relevant and necessary to establish both the dangerous condition of the floor on which he fell and the defendant's knowledge of the occurrence of the same unsafe condition on prior occasions. Relying upon claimant's affidavit submitted in support of his prior motion for summary judgment, defense counsel contends that the testimony of these witnesses is unnecessary because the claimant can describe the condition of the floor at the time the incident occurred, and can testify regarding his complaints concerning the condition prior to the date of his accident. Defendant, however, disputed both claimant's description of the condition which allegedly caused his fall and that it had actual or constructive notice thereof (see affidavits of James Yole, a Corrections Officer, and Michael Atwood, General Industrial Training Supervisor, which were submitted in opposition to claimant's motion for summary judgment). As a result, the trial testimony of claimant's proposed inmate witnesses is not only relevant but may well be necessary to the successful prosecution of his claim. The Court will therefore grant claimant's motion for the issuance of trial subpoenas to compel the testimony of inmates Murphy and Carpenter at the time of trial.
Claimant's request for subpoenas to compel the attendance of inmates Frejomil and Bennet as well as Kevin Hart, the Shop Supervisor, is denied inasmuch as defense counsel has indicated that Mr. Frejomil is deceased, Mr. Bennet has been discharged from State custody and Mr. Hart is no longer employed by the State of New York. With respect to both Mr. Bennet and Mr. Hart, claimant has failed to provide their address or otherwise indicated knowledge of their whereabouts.
With regard to claimant's request for subpoenas to secure the testimony of various medical professionals, the Court has determined, and hereby Orders, that the trial of this matter shall be bifurcated. As the initial phase of trial will address only the issue of liability, claimant's motion for the issuance of subpoenas compelling the attendance of individuals for the purpose of providing medical testimony at trial is denied at this time.
Claimant failed to submit proposed subpoenas together with his application. Once a date for the liability trial is established, the defendant shall notify the claimant and the Court of the facilities in which inmates Murphy and Carpenter are confined. Claimant shall then prepare trial subpoenas directed to the Superintendents of the appropriate facilities requiring the production of the inmates for trial either by way of remote video conference or, if such technology is unavailable at the facilities where the inmates reside, at Great Meadow. The proposed subpoenas should be forwarded to the Chambers of the undersigned (located at 65 So. Broadway, Rm. 220, Saratoga Springs, New York 12866) to be so ordered. The so ordered subpoenas will be returned to the claimant who may serve the Superintendents by certified mail, return receipt requested, pursuant to CPLR 2303 (a) and CPLR 308 (5) (Porter v State of New York, supra; Brown v State of New York, UID No. 2006-044-516 [Ct Cl, Schaewe, J., Nov. 21, 2006]). The subpoenas must be served with the required witness fee (fifteen dollars), which shall be payable to the respective inmates (CPLR 2303 [a] and 8001 [a]; Davis v State of New York, UID No. 2013-049-034 [Ct Cl, Weinstein, J., June 28, 2013]; Amaker v State of New York, UID No. 2007-015-215 [Ct Cl, Collins, J., July 16, 2007]). In the event remote video conference technology is unavailable from the inmates' respective facilities and inmates Murphy and/or Carpenter must be transported to Great Meadow to give trial testimony in this matter, mileage fees, payable to the New York State Department of Corrections and Community Supervision (id.), must be included with the subpoenas.
CPLR 8001 (a) provides for payment as follows:
"Any person whose attendance is compelled by a subpoena, whether or not actual testimony is taken, shall receive for each day's attendance fifteen dollars for attendance fees and twenty-three cents as travel expenses for each mile to the place of attendance from the place where he or she was served, and return. There shall be no mileage fee for travel wholly within a city."
Lastly, claimant's request for an Order compelling defendant to provide a current photograph of the area where he slipped and fell depicting the placement of a non-slip mat, as well as the receipts for the purchase of the mat and Great Meadow's employee manual, is denied. Initially, it does not appear that claimant's motion to compel discovery of these items was preceded by a demand, thereby requiring denial of the request on this basis alone (see CPLR 3120; CPLR 3124). More significantly, however, the alleged post-accident purchase and placement of a non-slip mat constitutes evidence of a subsequent remedial measure which is inadmissible to prove the existence of a alleged dangerous condition at the time of claimant's accident (Chase v OHM, LLC, 75 AD3d 1031 [3d Dept 2010]; Cleland v 60-02 Woodside Corp., 221 AD2d 307 [2d Dept 1995]; Fernandez v Higdon El. Co., 220 AD2d 293 [1st Dept 1995]). Additionally, to the extent claimant requests a recent picture of the slop-sink area depicting the placement of a mat, "it is axiomatic that a party may not be compelled to create documents in order to comply with discovery demands" (Matter of General Electric Co. v Macejka, 252 AD2d 700, 701 [3d Dept 1998], lv dismissed 92 NY2d 1012 [1998]; see also City of New York v State of New York, 138 Misc 2d 768 [Ct Cl 1988]).
Based on the foregoing, claimant's motion is granted in accordance with this Decision and Order to the limited extent he seeks the issuance of trial subpoenas to compel the attendance of inmates Eugene Murphy and David Carpenter, and the defendant is hereby
ORDERED to provide the claimant and the Court with the name and address of the respective facilities in which inmates Eugene Murphy (91-B-0646) and David Carpenter (02-A-2487) are confined within 15 days of the date a trial date is assigned. The Court will then notify the parties of whether the trial testimony of inmates Murphy and Carpenter will be taken by remote video from the facilities in which they are confined, or from Great Meadow, in which case mileage fees are payable to DOCCS and should be included, together with the witness fees, when the subpoenas are served.
Upon receipt of notice from the Court regarding whether the trial testimony of inmates Murphy and/or Carpenter will be taken from the facilities in which they are then confined or Great Meadow, claimant should immediately submit his proposed subpoenas to the Court to be so ordered and returned to him for service (by certified mail, return receipt requested) upon the respective prison Superintendents in which these inmates are confined, together with the appropriate witness fees (payable to the respective inmates) and, if applicable, mileage fees (payable to DOCCS).
October 3, 2013
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Unsworn "Affidavit" in support of motion of James R. Pine filed July 22, 2013;
Affirmation of Anthony Rotondi dated August 13, 2013
Unsworn reply "Affidavit" of James R. Pine filed August 23, 2013;
Affidavit of James Yole sworn to December 22, 2011;
Affidavit of Michael Atwood sworn to December 22, 2011.