New York State Court of Claims

New York State Court of Claims
BROWN v. THE STATE OF NEW YORK, # 2017-015-251, Claim No. 124387, Motion No. M-90543

Synopsis

Pro se inmate's motion for the production of documents and witnesses was denied except to the limited extent of requiring the production of certain documents at trial.

Case information

UID: 2017-015-251
Claimant(s): RAYMOND BROWN
Claimant short name: BROWN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124387
Motion number(s): M-90543
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Raymond Brown, Pro Se
Defendant's attorney: Honorable Eric T. Schneiderman, Attorney General
Douglas R. Kemp, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 8, 2017
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, proceeding pro se, moves for an Order requiring defendant to produce records and witnesses at trial.

Claimant seeks damages for injuries allegedly sustained when he was exposed to a germicidal cleaner used to clean up blood in the mess hall of Great Meadow Correctional Facility on October 28, 2013. Claimant states in an affidavit submitted in support of the motion that he seeks an Order requiring the defendant to produce at trial "any and all information" from the manufacturer relating to the possible side effects of exposure to the germicidal cleaner (affidavit of Raymond Brown, 4) and "any and all information from the manufacturer on whether the chemical is 'safe' to [be] used around people while they eat food and drink" (id. at 5). In addition, claimant requests that the defendant produce at trial Ms. Boucher, the facility's custodial maintenance instructor; inmates Bernard Thomas and Irvin Bowens; the two inmates that performed the blood spill clean-up and the sergeant who was supervising the mess hall at the time the incident occurred.(1)

While claimant does not specifically request the issuance of subpoenas for the production of documents and witnesses at trial, it is clear that is the relief he is seeking. Inasmuch as pro se litigants are not included among those who are authorized to issue a subpoena, issuance by the court is necessary (CPLR 2302 [a]). 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 [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]). Here, it is clear that claimant's request for "any and all information" from the germicidal manufacturer relating to the possible side effects of exposure to the cleaner and whether it is safe to be used in an area where people are eating is an attempt to ascertain the existence of evidence for which the use of a subpoena is inappropriate. Moreover, to the extent claimant seeks information "from the manufacturer" which may not be in the defendant's possession, he failed to identify the manufacturer or demonstrate the relevance or necessity of the requested documents. However, giving due consideration to claimant's pro se status and the upcoming trial of this matter on September 14, 2017, the Court will require the defendant to produce at the time of trial all materials in its possession relating to the appropriate use of the germicidal cleaner specifically identified in the claim and any product warnings or directives of the Department of Corrections and Community Supervision related thereto.

With respect to claimant's request for witnesses to testify on his behalf at trial, the Court will consider the request as one for the issuance of subpoenas. To obtain subpoenas compelling the attendance of witnesses at trial, the burden rests on the party seeking the subpoena to establish that the witness testimony sought is both material and necessary to the prosecution or defense of the action (Romance v State of New York, UID No. 2014-038-525 [Ct Cl, DeBow, J. June 3, 2014]; Allaway v State of New York, UID No. 2004-016-0555 [Ct Cl, Scuccimarra, J., April 7, 2010]). Here, claimant failed to identify several of the witnesses he seeks to have produced at trial and the time for discovery has passed. To the extent claimant has requested the defendant to produce Ms. Boucher, the custodial maintenance supervisor, and inmates Bernard Thomas and Irvin Bowens, he failed to demonstrate the relevance or necessity of their anticipated testimony.

Accordingly, claimant's motion is denied except to the limited extent of requiring defendant to produce all materials in its possession relating to the appropriate use of the germicidal cleaner at issue and any warnings or directives of the Department of Corrections and Community Supervision related thereto.

August 8, 2017

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated June 1, 2017;
  2. Affidavit of Raymond Brown sworn to June 1, 2017;
  3. Affirmation of Douglas R. Kemp affirmed July 17, 2017.

1. By Order dated April 7, 2017, all motions relating to the claim, including motions requesting the production of documents or witnesses at trial, were required to be made returnable on or before July 19, 2017. The instant motion returnable July 19, 2017 is therefore timely.