Claimant's application for trial preference based upon the claim being an action against state and for issuance of a subpoena duces tecum to aid disclosure is denied.
|Claimant(s):||GARY GLEN GOAD, DIN: 00-B-1049,
a/k/a TALMIDGE A. GOAD
|Claimant short name:||GOAD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||GARY GLEN GOAD, a/k/a TALMIDGE A. GOAD
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 6, 2020|
|See also (multicaptioned case)|
Claimant, an inmate at Clinton Correctional Facility, moves for a trial preference because his claim is "an action brought by or against the state" (CPLR 3403 [a] ) and further seeks issuance of a subpoena duces tecum in order for claimant to obtain a copy of claimant's "Accident/Injury Report dated July 7, 2019."
Defendant opposes the claimant's motion.
Trial preferences are governed by CPLR 3403 which provides as follows:
"Civil cases shall be tried in the order in which notes of issue have been filed, but the following shall be entitled to a preference:
1. an action brought by or against the state, or a political subdivision of the state, or an officer or board of officers of the state or a political subdivision of the state, in his or its official capacity, on the application of the state, the political subdivision, or the officer or board of officers;
2. an action where a preference is provided for by statute; and
3. an action in which the interests of justice will be served by an early trial.
4. in any action upon the application of a party who has reached the age of seventy years.
5. an action to recover damages for medical, dental or podiatric malpractice.
6. an action to recover damages for personal injuries where the plaintiff is terminally ill and alleges that such terminal illness is a result of the conduct, culpability or negligence of the defendant."
Claimant asserts that he is entitled to a trial preference pursuant to CPLR 3403 (a) (1).
A request for a trial preference sought pursuant to CPLR 3403 (a) (1) is made "on the application of the state." As such, the "preference in the case involving a governmental entity or governmental officials authorized by paragraph 1 of subdivision (a) is available only at the request of the government side. It is not available to just any party to the action merely because a governmental creature is one of the parties" (David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3403:3).
Further, with limited exceptions, all of the actions in the Court of Claims are brought against the State of New York and, consequently, in the case inmate pro se claims, trials are scheduled based upon the claim's filing date. This ensures that the oldest filed inmate pro se claims are tried before newer filed claims (see Oldham v State of New York, UID #2017-040-084, Claim No. 125034, Motion No. M-90389 [McCarthy, J., July 7, 2017]).
Claimant is not entitled to a trial preference.
Next, claimant has submitted no proof that he served on the defendant a notice for discovery and production of the requested document, as provided for in CPLR 3120, prior to making his motion for issuance of court-ordered subpoena duces tecum.
Pursuant to CPLR 3102 (b):
"Unless otherwise provided by the civil practice law and rules or by the court, disclosure shall be obtained by stipulation or on notice without leave of the court."
Section 3102 further provides, at subdivision (f), that in:
"[A]n action in which the state is properly a party, whether as plaintiff, defendant or otherwise, disclosure by the state shall be available as if the state were a private person."
There is no legal requirement that an incarcerated claimant first obtain a court order or a court issued subpoena duces tecum in order to obtain document disclosure from the state.
Finally, CPLR 3124 states that:
"If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response."
Claimant's failure to request disclosure by stipulation or on notice prior to resorting to motion practice requires denial of the motion for issuance of a subpoena duces tecum.
Finally, it appears that the defendant has provided the requested document to claimant.
The claimant's motion for an order granting a trial preference and for a subpoena duces tecum is denied.
August 6, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed January 29, 2020;
2. Unsworn "Affidavit" of Gary Glen Goad, dated January 9, 2020;
3. Affirmation of Michael T. Krenrich, dated July 9, 2020, and attached exhibit.