New York State Court of Claims

New York State Court of Claims

SLATE v. THE STATE OF NEW YORK, #2000-015-038, Claim No. 96573, Motion No. M-61525


Interrogatories which seek information which is duplicative of that previously obtained through earlier disclosure should be struck as palpably improper

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Jerold S. Slate, Esquire, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 30, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the claimant for a protective order vacating the defendant's demand for interrogatories dated March 24, 2000 is granted. This is a claim to recover attorneys fees pursuant to Public Officers Law § 17, which provides for indemnification and the payment of defense costs for State employees when the Attorney General determines that representation by his office would be inappropriate. The statute provides that a private attorney may be hired and his fees paid by the State. The Comptroller has established a fee schedule for attorneys pursuant to Public Officers Law § 17, and it is he who makes the initial determination as to the reasonableness of the fees requested.

Claimant was retained to represent State employee Kirk Montgomery in a Federal action. He submitted monthly vouchers to the Comptroller for services and expenses incurred from October of 1995 to October of 1996. The Comptroller approved payment of those vouchers. Thereafter, the Comptroller refused to pay vouchers submitted for the months of November, 1996 through March 1997. On April 23, 1997, the Comptroller sent written notice to claimant that no additional payments would be made for legal services rendered to Mr. Montgomery. The claim was filed on July 11, 1997 and demands $65,140.89 in damages. The record discloses that as of April, 1997 the State had paid claimant $211,045.44. The defendant has asserted a counterclaim which seeks to recover $80,000 for alleged overbilling by the claimant between October, 1995 and October, 1996.

On October 20, 1997, a conference was conducted for the purpose of establishing a deadline for the completion of discovery wherein counsel for both parties stipulated to the completion of all outstanding discovery and the filing of a note of issue on or before August 28, 1998. A note of issue was filed on August 24, 1998 and no motion was made to vacate that note of issue.

Despite the filing of the trial term note of issue and certificate of readiness this Court permitted discovery to continue and the defendant took two separate unsuccessful appeals to the Third Department addressing discovery orders issued by the Court (Slate v State of New York, _____AD2d ____, 701 NYS2d 729; Slate v State of New York, _____ AD2d _____, 699 NYS2d 824).

The Appellate Division issued its decision regarding the second matter appealed on January 20, 2000 and a conference was held on February 23, 2000 to address the scheduling of remaining disclosure. An order was filed on March 21, 2000 directing: that defendant serve its written interrogatories upon the claimant by March 24, 2000; that claimant serve written responses to the interrogatories or make a motion for a protective order on or before April 28, 2000; that the examination before trial of claimant commence at 10:00 a.m. on June 5, 2000 at the office of the Attorney General in Albany, New York; that the examination of any attorney employed by claimant to work on the Brooks v Montgomery litigation and identified by defense counsel in an examination before trial notice to be served on or before May 5, 2000 commence at 2:00 p.m. on June 5, 2000; and that the examination of the defendant's representative, if any, commence at 10:00 a.m. on June 6, 2000.

On March 24, 2000, the defendant served forty-six written interrogatories upon claimant inquiring with regard to claimant's experience as an attorney and the time spent by claimant and his legal assistant in working upon various aspects of the defense of Mr. Montgomery. This motion for a protective order ensued. Claimant argues that the interrogatories are not timely in that they should have been served and filed prior to the filing of the trial term note of issue and that the inquiries themselves are unreasonable, overbearing, immaterial or irrelevant. Claimant argues that defense counsel's tactics are dilatory and intended to harass. Defense counsel argues that the interrogatories are timely pursuant to this Court's order filed on March 21, 2000, and that the interrogatories themselves are appropriate.

The Court notes that the amount per hour at which claimant is to be compensated is not in dispute as both parties have agreed to the figure set by the Comptroller. The sole issue for trial in this claim is whether the claimant worked the number of hours he claimed and whether the hours worked were reasonable.

In the prior decision and order of this Court filed on October 23, 1998, the Court noted that the claimant had already delivered to the Attorney General twelve cartons of materials relating to his defense of Mr. Montgomery in the Federal action. In addition, claimant delivered two cartons of materials to chambers, together with a folder of time records, for in camera review by the Court concerning the attorney work product privilege and attorney client privilege invoked by claimant. The Court specifically directed the disclosure of the claimant's detailed time records set forth in files 34, 35, 36 and 60, all of which were subsequently delivered to the defendant. Thus, defense counsel already has in his possession the claimant's entire defense file in the Montgomery action, including time records, other than the materials which were specifically found to be privileged. Moreover, the determinative issue in this litigation is not going to be how much time claimant spent upon any particular task in defending Mr. Montgomery, but rather how much time a reasonable attorney would have spent (see Larkin v Present Co., 152 AD2d 1005).

The appellate courts have ruled that interrogatories which seek information which is duplicative of that previously obtained through earlier disclosure should be struck as palpably improper (Matter of Weinman, 261 AD2d 147). In such a situation, even if some of the interrogatories are proper, the entire set of interrogatories should be stricken as it is not the Court's obligation to prune prelitigation disclosure devices (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453). In the Court's view, the interrogatories which are the subject of the motion seek information which is duplicative of that already obtained through prior disclosure. To the extent, if any, that defense counsel requires additional information regarding the time records presently in his possession he may make inquiry at the examinations before trial scheduled for June 5, 2000.

May 30, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 12, 2000;
  2. Affirmation of Jerold S. Slate dated April 12, 2000, with exhibits;
  3. Affidavit in opposition of Dennis M. Acton sworn to April 25, 2000;
  4. Reply affirmation of Jerold S. Slate dated May 1, 2000.