New York State Court of Claims

New York State Court of Claims
FOX v. THE STATE OF NEW YORK, # 2019-015-136, Claim No. 129296, Motion No. M-93668


Pro se inmate's motion for the issuance of a trial subpoena was denied as the claim is not scheduled for trial.

Case information

UID: 2019-015-136
Claimant(s): STEPHEN FOX, 06 A 0135
Claimant short name: FOX
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129296
Motion number(s): M-93668
Cross-motion number(s):
Claimant's attorney: Stephen Fox, Pro Se
Defendant's attorney: Honorable Letitia James, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 2, 2019
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, proceeding pro se, moves for the issuance of a trial subpoena compelling the attendance of a nonparty inmate witness to attend trial and give testimony on his behalf.

Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), alleges that at approximately 11:45 a.m. on July 21, 2014 correction staff unnecessarily extracted him from his cell using chemical agents, slammed him into a wall, threatened him and, after applying mechanical restraints to his wrists from behind, "yanked" and "dragged" him to the shower, and then another 300 or 400 yards to the Residential Mental Health Crisis Treatment Program Unit (Mental Health Unit) (claim, 7,8). Claimant allegedly suffered injury as the result of the manner in which he was removed from his cell and transported to the Mental Health Unit. Claimant also alleges DOCCS failed to treat, or to properly treat, his injuries following the incident.

By Order dated February 5, 2019, trial of claim number 126746 was scheduled for June 7, 2019 and the parties were given until April 3, 2019 to make any motions. While no motion was made in relation to the claim scheduled for trial (126746), claimant moved for the issuance of a trial subpoena to compel the attendance of a nonparty inmate witness to give testimony on his behalf on claim number 129296. Obviously, the motion has been made on the wrong claim.

While claim number 126746 was pending, claimant moved for permission to file and serve a late claim alleging causes of action for excessive force, negligence, and medical malpractice arising from the same incident. The motion was granted with respect to claimant's proposed causes of action for negligence arising from the manner in which claimant was allegedly yanked and dragged to the Mental Health Unit and DOCCS' alleged failure to provide medical treatment for his injuries. To the extent the proposed claim alleged causes of action for excessive force and medical malpractice, the motion was denied. The excessive force cause of action was barred by the applicable one-year statute of limitations (CPLR 215 [3]) and claimant failed to support his proposed claim for medical malpractice with expert medical proof.

Following issuance of the Decision and Order granting late claim relief, a claim was filed on February 10, 2017 (claim No. 129296). Defendant served its answer to the claim on March 16, 2017 and, without leave of Court, served an amended answer to the claim on September 21, 2017. Inasmuch as this claim is not scheduled for trial, claimant's motion for the issuance of a trial subpoena compelling the attendance of a nonparty inmate witness to testify on his behalf must be denied.

Given the confusion relating to this matter, the Court will extend the cut-off date for motions relating to claim number 126746. Claimant's motion, if any, should include a notice of motion (see CPLR 2211), his notarized affidavit explaining why the anticipated testimony of the nonparty inmate is relevant, a copy of the nonparty inmate's affidavit that was submitted with the instant application, a proposed subpoena, and an affidavit of service attesting to the service of the motion on defense counsel (see CPLR2303-a). In this regard, the Uniform Rules for the Court of Claims require the following :

"[T]he original and two copies of all motion papers with proof of service annexed shall be filed in the clerk's office at least eight days before the return date. The moving party shall also serve a copy of all affidavits and briefs upon all other parties at the time of service of the notice of motion. The answering party shall serve copies of all affidavits and briefs as required by CPLR 2214(b) and file such copies in accordance with these rules" (22 NYCRR 206.9 [b]).

Based on the foregoing, it is hereby

ORDERED that claimant's motion is denied and all motions relating to claim number 126746, including any dispositive motions and those requesting the production of documents or witnesses at trial, shall be made returnable on or before May 15, 2019.

May 2, 2019

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Letter notice of motion dated March 17, 2019;
  2. Affidavit in support sworn to May 22, 2017;
  3. Proposed subpoena filed March 21, 2019;
  4. Affirmation in Opposition dated April 8, 2019.