Opinion
# 2014-015-478 Claim No. 117074 Motion No. M-84540
02-18-2014
INJAH TAFARII v. THE STATE OF NEW YORK
Claimant's attorney: Injah Tafari, Pro Se Defendant's attorney: Honorable Eric T. Schneiderman, Attorney General By: Jessica Hall, Esquire Assistant Attorney General
Synopsis
Inmate's motion for trial subpoenas was denied as he failed to establish the relevance and necessity of the proposed witnesses' anticipated testimony.
Case information
UID: 2014-015-478 Claimant(s): INJAH TAFARI Claimant short name: TAFARI Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117074 Motion number(s): M-84540 Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's attorney: Injah Tafari, Pro Se Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Jessica Hall, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: February 18, 2014 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 compelling the attendance of six non-party inmates to give trial testimony in this matter.
Claimant alleges he was assaulted in his cell by corrections staff at Great Meadow Correctional Facility on April 9, 2009 and April 13, 2009. In resolving a prior motion for the issuance of subpoenas compelling the attendance at the time of trial of the unidentified inmates, who were confined in cells near the claimant's at the time of the alleged assaults, the Court ordered the defendant to provide the names, DIN numbers and current location of these five inmates and advised the claimant that "[i]n the event claimant requires [the non-party inmates'] testimony at the time of trial, he must move for the issuance of trial subpoenas pursuant to CPLR 2302 (b) setting forth the relevance and necessity of the witnesses' anticipated testimony." Now in possession of the identity and current location of the non-party inmates whose trial testimony is sought, claimant moves for the issuance of trial subpoenas compelling their attendance at trial. In support of the application, claimant asserts that three inmates witnessed the alleged assault which occurred on April 9, 2009 and three other inmates witnessed the alleged assault on April 13, 2009. In an "[a]ddendum" to the motion, claimant also seeks the issuance of a subpoena compelling the attendance of a seventh non-party inmate as a "possible" witness to the alleged assault of April 13, 2009.
In opposition to the motion, defendant contends, inter alia, that claimant failed to establish that the trial testimony of the non-party inmates is material and necessary to the prosecution of this action. In support of this contention, defendant submits the affidavit of Corrections Captain Craig Goodman in which he states, in pertinent part, the following:
"I am familiar with the layout, function, and daily operations of what is known as the 'Mental Health Unit' at Great Meadow. Within said unit, there exists a set of six single person cells in a single row, each separated by walls made of plate steel. The front of each cell consists of typical cell bars, a cell gate, and is completely covered by protective plexiglass cell shield material which covers approximately 99% of the bar/gate areas. Thus, the entirety of these cells are situated such that it is physically impossible for an inmate occupying one Observation cell to view (or be viewed by) an inmate situated in another Observation cell" (defendant's Exhibit B).Notably, as claimant points out in reply, Captain Goodman states in his affidavit that he has been employed as a Corrections Captain at Great Meadow Correctional Facility for only two and one-half years and fails to set forth that the configuration of the cells was the same at the time of the alleged assaults in April 2009.
Although defense counsel previously objected to certain discovery demands on the ground that "claimant was not in the MHU Dorm" during the period April 7, 2009 through April 14, 2009, it is assumed that Captain Goodman's affidavit pertains to the area in which claimant was actually confined during the relevant period.
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., October 2, 2006]). To obtain a judicial subpoena compelling the attendance of a non-party 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., November 22, 2006]). In support of his motion for the issuance of trial subpoenas claimant submits only his unsworn statement indicating that the six inmates sought to be subpoenaed were witnesses to the incidents. The inadmissible nature of the supporting statement aside, claimant has submitted no evidence indicating that these inmates were in their cells at the time of the alleged assaults, the position of their cells relative to the claimant's or any other evidence indicating the likelihood that any of the inmates witnessed the events allegedly giving rise to the claim. With respect to the seventh proposed witness indicated in claimant's "[a]ddendum", he states only that the proposed witness "could possibl[y] have witness[ed] the entire incident on April 13, 2009" (see Addendum Motion to Subpoena Inmate Witnesses to the Trial, ¶ 2) The possibility that a non-party witness may have information relevant to the claim is insufficient to support the issuance of a trial subpoena. As a result, claimant's motion for the issuance of trial subpoenas is denied.
Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.
February 18, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated January 16, 2014; Affirmation of Jessica Hall filed February 3, 2014 with exhibits; Addendum to motion of Injah Tafari dated January 22, 2014; Letter from claimant dated February 6, 2014.