Pro se claimant's motion for the issuance of Judicial Subpoenas was granted in part.
|Claimant(s):||JONAS X. CABALLERO|
|Claimant short name:||CABALLERO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Jonas Caballero, Pro Se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||August 19, 2021|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves for the issuance of Judicial Subpoenas compelling the attendance of several witnesses at trial.
Claimant, a former inmate of the Department of Corrections and Community Supervision, seeks damages for an allegedly unlawful invasion of his privacy rights arising from the presence of a female correction officer in an operating room at Albany Medical Center during the course of a colonoscopy and surgical procedure. Specifically, claimant alleges that the presence of the female correction officer in the operating room constituted an unlawful search in violation of his privacy rights under both the State and Federal Constitutions.
As a pro se litigant claimant 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 both
"material and necessary" to the prosecution or defense of the action (CPLR 3101 [a]; Matter of Kapon v Koch, 23 NY3d 32, 38 ; Brown v The State of New York, Ct Cl, Oct. 3, 2016, McCarthy, J., claim No. 120236, UID No. 2016-040-076; Romance v The State of New York, Ct Cl, June 3, 2014, DeBow, J., claim No. 117475, UID No. 2014-038-525; Allaway v The State of New York, Ct Cl, April 7, 2010, Scuccimarra, J., claim No. 114863, UID No. 2010-030-532). Material and necessary means relevant (Forman v Henkin, 30 NY3d 656, 661 ).
Claimant first requests the issuance of a subpoena compelling the attendance at trial of Officer Duncan, the female Correction Officer present in the operating room during the course of the procedures, on the ground she "was the central actor at the heart of the actions that gave rise to his claims" (claimant's affidavit in support, ¶ 3 [a]). Inasmuch as Officer Duncan's presence in the operating room during the course of the procedures is, indeed, at the heart of this litigation, the testimony of this witness is clearly material and necessary to the prosecution of the claim. The Court will therefore issue the requested subpoena for service on the Office of the Attorney General in accordance with CPLR 2303-a.
Claimant also requests the issuance of a subpoena compelling the attendance at trial of Correction Officer Healy who claimant alleges escorted him from Green Correctional Facility to Albany Medical Center, together with Officer Duncan, and who "played a central role in the denial of my constitutional and New York statutory rights" (claimant's affidavit in support, ¶ 3 [b]). The testimony of this witness being material and necessary to the prosecution of the claim, the Court will issue the requested subpoena for service on the Office of the Attorney General (CPLR 2303-a).
Claimant next requests the issuance of a judicial subpoena compelling the attendance at trial of the Inmate Grievance Coordinator at Green Correctional Facility to demonstrate that he exhausted his administrative remedies. This request is denied as there is no requirement for the exhaustion of administrative remedies before commencing an action in the Court of Claims.
Lastly, claimant requests the issuance of a judicial subpoena compelling the attendance at trial of Dr. Jonathan J. Canete, the colorectal surgeon who performed the claimant's surgery at Albany Medical Center and whose testimony, claimant asserts, is relevant to demonstrate the extent to which his privacy rights were invaded. In particular, claimant seeks to establish with this witness' testimony the manner in which the procedure was performed and "what [the doctor] witnessed with regard to the positioning and viewpoint of C.O. Duncan" while the claimant was under full anesthesia (claimant's affidavit in support, ¶ 3 [d]. The Court agrees the testimony of Dr. Jonathan J. Canete is relevant to the prosecution of the claim and the Court will therefore issue a subpoena to take the testimony of Dr. Canete.
Although the trial of this claim has been scheduled for November 23, 2021, a determination has not yet been made as to whether or not the claim will be tried in person or virtually using the Microsoft TEAMS platform. Accordingly, the Court will hold in abeyance the issuance of the subpoenas pending such determination after consultation with the parties. In any event, however, the subpoena directed to Dr. Canete, will permit his testimony to be taken remotely using the Microsoft TEAMS platform.
Notably, the claimant is responsible for payment of witness fees and, if applicable, travel expenses pursuant to CPLR 2303 (a) and CPLR 8001 (a).Based on the foregoing, claimant's motion is granted, without opposition, to the extent indicated.
August 19, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of motion dated June 11, 2021;
2. Affidavit in support sworn to June 15, 2021, with Exhibits A-G.