Pro se claimant's motion for the issuance of subpoenas to compel the attendance of witnesses and documents at trial was denied as the defendant agreed to produce the witness and materials that claimant demonstrated were material and necessary to the prosecution of his claim. Subpoenas were therefore unnecessary.
|Claimant short name:||ANAND|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||129898, 129899|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Chandrabhushan Anand, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Douglas R. Kemp, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 28, 2019|
|See also (multicaptioned case)|
Claimant seeks the issuance of trial subpoenas compelling the attendance of witnesses and the production of documents for trial.
Claimant retired from employment with the NYS Division of Housing and Community Renewal on February 21, 2017. In claim number 129898, he alleges he is entitled to compensation for an anniversary bonus day, sick leave on February 17, 2017, a "[f]loater" on February 13, 2017, certain sick pay for the period December 30, 2015 through January 19, 2016, and travel expenses for January 13, 2016 and January 25, 2017 (claim No. 129898, ¶ 2). In claim number 129899, claimant seeks payment for jury duty from February 14, 2017 through February 16, 2017, sick leave on February 17, 2017, and Presidents' Day on February 20, 2017. Claimant now moves for the issuance of trial subpoenas to compel the attendance of Jeffrey Cain, his former supervisor, and Kristine Lanners, a Human Resource Manager in the Office of Human Resources Management, New York State Homes and Community Renewal. Claimant also seeks to subpoena certified copies of the following documents:
1. Time Sheet #23, which includes February 14, 2017 through February 20, 2017;
2. Time Sheet covering the period December 30, 2015 through January 19, 2016;
3. "Certified copy of the check for the final payment of my dues" (claimant's Schedule A);
4. Leave and attendance manual for the relevant period;
5. PEF contract covering 2017;
6. Certified mailing slip[s] for "letter(s) sent by certified mail with copies of content mailed to me in the months of February and March 2017" (claimant's Declaration in Support of Subpoena Duces Tecum, ¶ 3).
Inasmuch as pro se litigants are not authorized to issue subpoenas, they are required to move for the issuance of subpoenas by the court. To succeed on such a motion, the burden rests on the party seeking the subpoena to establish that the documents or witnesses are "material and necessary" to the prosecution or defense of the action (CPLR 3102; Matter of Kapon v Koch, 23 NY3d 32, 38 ; Romance v The State of New York, Ct Cl, June 3, 2014, DeBow, J., claim No. 117475, UID No 2014-038-525).(1) Given the allegations in the claim, the relevance and necessity for most of the records requested by the claimant is apparent. As a result, defense counsel has agreed, with two exceptions, to produce the requested records without the need for a subpoena. However, the court agrees that claimant's failure to specifically identify the letters for which he is seeking certified mailing slips (item #6 above) renders the issuance of a subpoena for these items inappropriate. The purpose of a subpoena duces tecum is to compel the production of specifically identified documents, not to ascertain their existence in the first instance (People v Gissendanner, 48 NY2d 543, 551 ). Likewise, claimant's request for a subpoena to obtain a "[c]ertified copy of the check for the final payment of my dues" (claimant's Schedule A) is also insufficiently clear to permit the issuance of a subpoena compelling its production.
Lastly, defendant has agreed to produce Kristine Lanners, a Human Resource Manager, to testify on claimant's behalf at trial. However, to the extent the claimant seeks to compel the attendance of Jeffrey Cain, his former supervisor, he failed to meet his burden of demonstrating that Mr. Cain's anticipated testimony is material and necessary to the prosecution of his claim. In fact, though the supervisor's testimony might logically be thought to be germane, claimant failed to set forth any reason for his request that this individual be subpoenaed to testify at trial. Given the defense counsel's representation that Mr. Cain is employed in the City of New York, and the claimant's failure to provide any facts or argument to establish the relevance and materiality of his testimony, issuance of the requested subpoena must be denied.Accordingly, claimant's motion is granted to the extent of requiring the defendant to produce Kristine Lanners at trial, together with certified copies of the documents denominated nos. 1, 2, 4, and 5 set forth herein, and is otherwise denied.
August 28, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
Claim No. 129898
Claim No. 129899
1. Unreported decisions from the Court of Claims are available via the internet at: www.nyscourtofclaims.state.ny.us.