
    Detroy Livingston, Respondent, v State of New York, Appellant.
    (Claim No. 94539.)
    [700 NYS2d 898]
   —Order unanimously affirmed without costs. Memorandum: The Court of Claims properly granted claimant’s motion seeking the issuance of subpoenas for four nonparty inmate witnesses in this action commenced by claimant against defendant, State of New York (State), and properly ordered claimant to pay the attendance fees and travel expenses pursuant to CPLR 8001. In opposing the motion, the State focused primarily on whether the witnesses were necessary and contended that three of the four subpoenas should not be issued. Although the State in addition contended that Civil Rights Law § 79 (3) (a) was applicable, the State further contended that it was premature to evaluate the burden that the subpoenas might impose on the State because it was not known where the inmates would be housed when the case was tried. Thus, contrary to the State’s contention on appeal, the court did not err in failing to address the application of the statute to claimant’s motion. (Appeal from Order of Court of Claims, NeMoyer, J. — Fees.) Present — Pine, J. P., Hayes, Pigott, Jr., Hurlbutt and Callahan, JJ.  