New York State Court of Claims

New York State Court of Claims
GONZALEZ v. STATE OF NEW YORK, # 2019-040-095, Claim No. 127820, Motion No. M-94508


Pro se Claimant's Motion for subpoenas denied.

Case information

UID: 2019-040-095
Claimant(s): LUIS GONZALEZ
Claimant short name: GONZALEZ
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127820
Motion number(s): M-94508
Cross-motion number(s):
Claimant's attorney: Luis Gonzalez, #14A3662, Pro Se
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Christina Calabrese, Esq., AAG
Third-party defendant's attorney:
Signature date: October 25, 2019
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


For the reasons set forth below, Claimant's Motion for judicial subpoenas ad testificandum and duces tecum is denied.

This Claim, which was filed by the pro se Claimant in the Office of the Clerk of the Court on April 20, 2016, alleges that, on February 8, 2015 at approximately 6:30 p.m., Claimant slipped and fell on an accumulation of snow and ice in the vicinity of the Annex compound gate at Bare Hill Correctional Facility. Claimant also alleges that he did not receive proper medical care, as his right ankle was not x-rayed until February 11, 2015, and it was determined his ankle was broken in three places, however, he did not see a doctor until February 17, 2015, when his right ankle was placed in a cast. The trial of this matter is scheduled to be held by video conference on November 15, 2019.

Pro se litigants are not included among those persons authorized to issue a subpoena (CPLR 2302[a]). Claimant seeks subpoenas ad testificandum for five witnesses: two correction sergeants, a correction officer, a medical doctor, and a physical therapist. Claimant must submit the proposed subpoenas with his motion papers. This, Claimant has done. In addition, to obtain a judicial subpoena compelling the attendance of a non-party witness at trial, the moving party must establish that the anticipated testimony is both material and necessary to the prosecution of the action (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]; Cerasaro v Cerasaro, 9 AD3d 663 [3d Dept 2004]; Liner v State of New York, UID No. 2010-015-169 [Ct Cl, Collins, J., Aug. 12, 2010]). Here, Claimant has stated, in very general and conclusory fashion, that the witnesses' "testimony is needed in order for Claimant to secure facts that are critical to proving the merits of his case before this Court" (Claimant's Affidavit in Support of Motion, 3). Thus, Claimant has failed to establish that the anticipated testimony of each witness is both material and necessary to the prosecution of the action.

Turning to the requested subpoena duces tecum, Claimant seeks the production of: (1) all physical therapy records, medications, prescriptions; (2) sick call requests and nurses notes and writing pertaining to this subject matter; (3) C.I.T.S. attendance sheet for Claimant on February 11, 2015; (4) Misbehavior Report issued by Sergeant Dubray to Claimant for an incident on February 4, 2015; (5) log entries showing sidewalk maintenance, including snow removal and salting for February 8, 2015; and (6) any grievance filed by Claimant.

In general, " 'a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence' " (Matter of Murray v Hudson, 43 AD3d 936, 937 [2d Dept 2007], quoting People v Gissendanner, 48 NY2d 543, 551 [1979]). CPLR 3120(1) permits the service of a notice for discovery on a "party" and a subpoena duces tecum on "any other person." Claimant's requests for subpoenas are an inappropriate procedural vehicle for obtaining discovery from Defendant in this case (Pettus v State of New York, UID No. 2009-015-131 [Ct Cl, Collins, J., Feb. 2, 2009]).

However, the Court notes that most, if not all, of the information sought in Claimant's first and second requests should be contained in Claimant's medical records. If Defense counsel has a copy of Claimant's Department of Corrections and Community Supervision medical records, the Court requests that Defense counsel provide a copy to Claimant, as soon as possible. As to Claimant's request for the C.I.T.S. attendance sheet, Claimant has not established the relevance of the document. Claimant has also not established the relevance of the Misbehavior Report issued on February 4, 2015, which was four days prior to his alleged slip and fall. The Court further requests that Defense counsel provide a copy of log entries relating to maintenance of the sidewalk where Claimant allegedly fell for February 8, 2015, if counsel has such records. Finally, the Court finds the request for any grievances filed by Claimant to be overbroad and burdensome.

Therefore, based upon the foregoing, Claimant's Motion for issuance of judicial subpoenas ad testificandum and duces tecum is denied.

October 25, 2019

Albany, New York


Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant's Motion for issuance of subpoenas:

Papers Numbered

Notice of Motion, Affidavit,

& subpoenas attached 1

Affirmation in Opposition 2

Filed Papers: Claim, Answer