New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2000-010-072, Claim No. 100356, Motion Nos. M-62148, CM-62378


Synopsis


Claimant's motion for costs incurred by defendant's failure to respond to a Notice to Admit is denied and defendant's cross-motion for a protective order is granted.

Case Information

UID:
2000-010-072
Claimant(s):
DWAYNE W. MOORE
Claimant short name:
MOORE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100356
Motion number(s):
M-62148
Cross-motion number(s):
CM-62378
Judge:
Terry Jane Ruderman
Claimant's attorney:
DWAYNE W. MOOREPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 20, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion for costs incurred by defendant's failure to respond to a Notice to Admit and defendant's cross-motion for a protective order:

Notice of Motion, Claimant's Supporting Affidavit................................................1

Notice of Cross-Motion, Attorney's Supporting Affirmation..................................2

Claimant asserts that on September 27, 1999, he served defendant with a Notice to Admit and defendant failed to respond. Accordingly, claimant argues that the facts are deemed admitted and defendant is liable to claimant in the amount of $9.00 for the costs of copying and mailing the Notice to Admit to defendant. Defendant cross-moves for a protective order and an order deeming defendant's responses timely.

Neither party has included a copy of the Notice to Admit with their papers, nor was the Notice to Admit filed with the Court. Accordingly, the Court cannot address the substance of the Notice to Admit. Thus, to the extent that defendant cross-moves for a protective order, that application must be denied at this time, but may be renewed upon proper papers.

It is noted that a Notice to Admit is to be used "only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial" (see, Meadowbrook-Richman, Inc., v Cicchiello, ___AD2d___, 709 NYS2d 521). A Notice to Admit cannot be used to request admissions of facts which are in dispute (see, Orellana v City of New York, 203 AD2d 542 [Notice to Admit was palpably improper because it sought admissions of contested ultimate issues and not clear cut matters of fact which were not in dispute]).

Claimant's motion for the costs of copying and mailing the Notice to Admit to defendant is improper, or at best, premature. CPLR 3123(c) provides that the penalty for unreasonable delay in responding to a Notice to Admit is that claimant may recover the reasonable expenses incurred in proving the facts which were the proper subject of the Notice to Admit. The statute does not provide for costs associated with copying and mailing a Notice to Admit. Claimant has not proved the genuineness of any document, nor the truth of any fact. Further, the statute provides that an application for costs may be made "at or immediately following the trial" (CPLR 3123[c]). Accordingly, claimant's motion is DENIED.

On the facts and circumstances of this case, that branch of defendant's cross-motion which seeks an order deeming defendant's responses to the Notice to Admit timely is GRANTED (see, Clark v Prudential Ins. Co. of America, 18 AD2d 1090 [motion to extend time to respond to Notice to Admit, which had been served two years prior to motion, was granted for attorney's oversight because of an absence of prejudice]). The Court cannot, without the Notice to Admit, rule on the appropriateness of defendant's response.


October 20, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims