Opinion
# 2020-015-034 Claim No. 129531 Motion No. M-95031
03-16-2020
EDWARD RANDOLPH v. THE STATE OF NEW YORK
Edward Randolph, Pro Se Honorable Letitia James, Attorney General By: Glenn C. King, Esq., Assistant Attorney General
Synopsis
Pro se inmate's motion for the issuance of subpoenas was granted to the extent of requiring the defendant to produce certain documents in its possession upon the payment of a fee, if one is required.
Case information
| UID: | 2020-015-034 |
| Claimant(s): | EDWARD RANDOLPH |
| Claimant short name: | RANDOLPH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129531 |
| Motion number(s): | M-95031 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Edward Randolph, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Glenn C. King, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 16, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves for the issuance of subpoenas compelling the production of documents and the attendance of witnesses for trial.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for the loss of certain personal property at Great Meadow Correctional Facility on or about November 7, 2016. He alleges that following the transfer of his property from Coxsackie Correctional Facility to Great Meadow Correctional Facility, prison staff destroyed his property in retaliation for his prior complaints and grievances. In addition to the value of his property, the claim alleges damages for emotional distress.
In preparation for an upcoming trial, claimant seeks the issuance of subpoenas to obtain witness testimony from the Mental Health Unit Chief and the social workers assigned to his case during his confinement at Southport Correctional Facility from February 17, 2017 through the remainder of his stay at that facility. Claimant indicates that the testimony of these witnesses is relevant on the issue of his mental state immediately after receiving news that his property was missing. Claimant indicates that among the property which was lost were personal photographs and letters from his now-deceased grandmother and a book manuscript that can never be replaced.
Claimant also seeks the issuance of subpoenas to obtain the following documents: (1) a copy of his mental health records; (2) the I-64 property inventory forms generated upon his transfer from Elmira Correctional Facility to Coxsackie Correctional Facility in August, 2016; (3) the I-64 property inventory forms generated upon his transfer from Coxsackie Correctional Facility to Great Meadow Correctional Facility in November, 2016; and (4) DOCCS' Directives 4933 and 4934 relative to the procedures for storing inmates' property during their confinement to a Special Housing Unit.
A pro se litigant is not among the persons authorized to issue subpoenas thereby requiring issuance by the Court (CPLR 2302). To obtain a subpoena compelling the production of documents or the attendance of witnesses at trial, the burden rests on the party seeking the subpoena to establish that the documents or witness testimony sought is "material and necessary" to the prosecution or defense of the action (CPLR 3101 (a); Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]; Romance v The State of New York, Ct Cl, June 3, 2014, DeBow, J., claim No. 117475, UID No. 2014-038-525; Allaway v The State of New York, Ct Cl, April 7, 2010, Scuccimarra, J., claim No. 114865, UID No. 2010-030-532). Material and necessary means relevant, "regardless of whether discovery is sought from another party (see CPLR 3101 [a] [1]) or a nonparty" (Forman v Henkin, 30 NY3d 656, 661 [2018], citing 3101 [a] [4]).
The purpose of a subpoena duces tecum is "to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding" (Matter of Niagara Mohawk Power Corp. v Town of Moreau Assessor, 8 AD3d 935, 937 [3d Dept 2004] [internal quotation marks and citation omitted]). A "subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence" (People v Gissendanner, 48 NY2d 543, 551 [1979]). Similarly, a subpoena ad testificandum may only be used to secure the testimony of specifically identified witnesses (see Matter of Terry D., 81 NY2d 1042 [1993]; Lopez v State of New York, Ct Cl, Oct. 11, 2017, Schaewe, J., claim No. 124067, UID No. 2017-044-013). It is therefore incumbent on a pro se litigant seeking the issuance of a subpoena to demonstrate a factual basis establishing the relevancy of the requested materials or witness testimony (Matter of Watertown City Sch. Dist. v Anonymous, 120 AD3d 1587, 1588 [4th Dept 2014]). Neither a subpoena duces tecum nor a subpoena ad testificandum may be used to obtain otherwise unavailable discovery or ascertain the existence of evidence (Matter of Terry D., 81 NY2d 1042; Wahab v Agris & Brenner, LLC, 106 AD3d 993 [2d Dept 2013]).
Here, the claimant's request to subpoena unidentified witnesses is improper. The identity of the witnesses whose testimony is asserted to be material and relevant should have been determined during the pre-trial phase of the claim. Moreover, claimant indicates the testimony of these unidentified witnesses as well as the production of his mental health records are relevant and necessary to prove his emotional state following the loss of his property. To the extent the claim alleges damages for emotional distress, however, it fails to state a cause of action. To recover on a claim for negligent infliction of emotional distress, the circumstances must provide some indicia of reliability (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1 [2008]). As a matter of policy, therefore, liability for negligent infliction of emotional distress is limited to circumstances in which a breach of duty owed directly to the claimant results in psychological trauma accompanied by "residual physical manifestations" (Johnson v State of New York, 37 NY2d 378, 381 [1975]; citing, inter alia, Battalla v State of New York, 10 NY2d 237 [1961]; see also Justice v State of New York, 66 AD3d 1182 [3d Dept 2009]) or the circumstances are such that there exists a "guarantee that the claim is not spurious" (Johnson, 37 NY2d at 382; see also Shipley v City of New York, 80 AD3d 171 [2d Dept 2010]; Estate of LaMore v Sumner, 46 AD3d 1262 [3d Dept 2007]; Massaro v O'Shea Funeral Home, 292 AD2d 349 [2d Dept 2002]). Movant here alleges no physical manifestations of injury as the result of the State's alleged breach of duty and the circumstances alleged are not of the type that permit an inference of injury. Consequently, claimant's request to subpoena these unidentified witnesses as well as his mental health records is denied.
Claimant's request for the issuance of subpoenas to obtain the I-64 inventory of property form relative to his transfer from Coxsackie Correctional Facility to Great Meadow Correctional Facility in November, 2016 is clearly relevant to establish claimant's possession of the property for which he makes a claim. However, claimant failed to establish the relevance of the I-64 form generated upon his transfer from Elmira Correctional Facility to Coxsackie Correctional Facility in August 2016.
With respect to the production of DOCCS' Directives 4933 and 4934, the Court has reviewed these Directives and agrees with the claimant that they are relevant to the proper procedures to be utilized in temporarily storing an inmate's property. Inasmuch as the relevant I-64 form generated in November, 2016 as well as the sought-after Directives are within the defendant's control, the Court will require the defendant to provide copies to the claimant upon payment of the reasonable costs (Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]).
Accordingly, claimant's motion is granted to the extent the defendant is hereby
ORDERED to inform the claimant in writing of the costs of reproducing the I-64 form generated in November 2016 and Directives 4933 and 4924 within ten days of the date this Decision and Order is filed, and defendant is further
ORDERED to provide claimant with certified copies of the I-64 form generated in November 2016, and Directives 4933 and 4934 within ten days of the receipt of payment, and it is further
ORDERED that in the event claimant is unable to pay the required costs for reproducing the requested records, defense counsel shall bring them with him or her to the trial so as to permit claimant to review the records before the start of trial.
March 16, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered
1. Undated Notice of Motion filed December 13, 2019;
2. Affidavit in support November 27, 2019;
3. Letter from Glenn C. King, A.A.G., dated December 20, 2019.