New York State Court of Claims

New York State Court of Claims
NASH v. STATE OF NEW YORK, # 2020-015-047, Claim No. 129666, Motion No. M-95278


Pro se claimant's motion for the issuance of subpoenas was denied.

Case information

UID: 2020-015-047
Claimant(s): NEHEMIAH NASH
Claimant short name: NASH
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129666
Motion number(s): M-95278
Cross-motion number(s):
Claimant's attorney: Nehemiah Nash, Pro Se
Defendant's attorney: Honorable Letitia James, Attorney General
By: Shadi Masri, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 8, 2020
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, proceeding pro se, seeks the issuance of subpoenas to compel the attendance of witnesses and the production of certain documents at trial.

The claim asserts causes of action for wrongful confinement to the Special Housing Unit (first cause of action); negligence in the manner in which a prison disciplinary hearing was conducted (second cause of action); the loss of personal property entrusted to prison officials but not returned (third cause of action); negligent maintenance of the SHU resulting in a spider bite (fourth cause of action), and wrongful confinement for the 21-day period claimant was allegedly confined to the SHU following the administrative reversal of the hearing officer's determination (fifth cause of action).

Initially, defendant contends that the instant motion was filed beyond the time to do so set forth by this Court in correspondence dated January 14, 2017, requiring that "all motions relating to the above-entitled claim, including any dispositive motions and those requesting the production of documents or witnesses at trial, shall be made returnable on or before February 19, 2020" (defendant's Exhibit E). Although the claimant served the instant motion on February 4, 2020, within a sufficient period of time to make it returnable by the February 19th deadline date (see CPLR 2103 [b] [2]; CPLR 2214 [b]), the Clerk's office scheduled the return date of the motion for March 4, 2020. As claimant complied with the Court's directive by timely filing the motion, the motion will be considered on the merits.

A pro se litigant is not among the persons authorized to issue subpoenas thereby requiring issuance by the Court (CPLR 2302). To obtain a subpoena compelling the production of documents or the attendance of witnesses at trial, the burden rests on the party seeking the subpoena to establish that the documents or witness testimony sought is "material and necessary" to the prosecution or defense of the action (CPLR 3101 [a]; Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]; Romance v State of New York, Ct Cl, June 3, 2014, DeBow, J., claim No. 117475, UID No. 2014-038-525; Allaway v State of New York, Ct Cl, April 7, 2010, Scuccimarra, J., claim No. 114865, UID No. 2010-030-532). Material and necessary means relevant "regardless of whether discovery is sought from another party (see CPLR 3101 [a] [1]) or a nonparty" (Forman v Henkin, 30 NY3d 656, 661 [2018], citing 3101 [a] [4]). 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 [3d Dept 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]). Similarly, a subpoena ad testificandum may only be used to secure the testimony of specifically identified witnesses (see Matter of Terry D., 81 NY2d 1042 [1993]; Lopez v State of New York, Ct Cl, Oct. 11, 2017, Schaewe, J., claim No. 124067, UID No. 2017-044-013). It is therefore incumbent on a pro se litigant seeking the issuance of a subpoena to demonstrate a factual basis establishing the relevancy of the requested materials or witness testimony (Matter of Watertown City Sch. Dist. v Anonymous, 120 AD3d 1587, 1588 [4th Dept 2014]).

Claimant has requested the issuance of subpoenas duces tecum to obtain his MHU outpatient care progress notes and the RMHU Policy & Procedure Manual "relating to the mental disposition of the claimant upon arrival at Marcy-RMHU and during his stay there . . ." (claimant's "affirmation", 3). Claimant also requests the issuance of subpoenas ad testificandum to compel the attendance at trial of certain witnesses from Marcy Correctional Facility RMHU, Great Meadow Correctional Facility and Central New York Psychiatric Facility.

From Marcy CF claimant has requested Court issued subpoenas compelling the attendance of "Sergeant Z", "Ms. Santepetros, RMHU Director (?)", "L. Kallies, Unit Chief", "Dr.Brown, Psychiatrist", "Ms. Tzicka, Facilitator", "Mr. Rollins, Facilitator", J. Donahue, DSMH" (claimant' "affirmation", 4).

From Great Meadow Correctional Facility claimant has requested Court issued subpoenas compelling the attendance of "Claudia Collins, C.O." and "J. Scroggy, ORC" (id.).

From CNY Psychiatric Center claimant has requested Court issued subpoenas compelling the attendance of "Kara Harvey, LMSW, relating to . . . Marcy C.F. RMHU - the on-going harassment experienced while confined there, the injuries sustained while there, and the emotional distress and mental anguish suffered as a consequence of not only being confined to Marcy C.F. wrongfully, but, the injuries sustained there, the rights so deprived, and the Excessive confinement as well" (id. at 4).

Claimant has failed to demonstrate a factual predicate for the issuance of subpoenas for the requested materials or witnesses and their relevance is not apparent. To the extent claimant seeks to prove harassment by correctional staff at Marcy Correctional Facility, this allegation is not part of the subject claim. To the extent claimant is seeking medical or psychiatric proof of his injuries arising from his alleged wrongful confinement, claimant may offer certified medical records in evidence at trial.

Based on the foregoing, claimant's motion is denied.

May 8, 2020

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion dated January 29, 2020;
  2. Claimant's document titled "Affirmation in Support of Motion for Subpoena" sworn to February 6, 2020;
  3. Claimant's document titled "Affirmation of Service" sworn to February 13, 2020, with Exhibits XIII to XVI;
  4. Affirmation in opposition dated February 18, 2020, with Exhibits A-F.