New York State Court of Claims

New York State Court of Claims

ACOSTA v. THE STATE OF NEW YORK, #2001-014-504, Claim No. 86740, Motion No. M-62742


Synopsis


Motion to deem admitted certain items in the claimant's notice to admit, based upon the defendant's responses to them, is denied. CPLR 3123 provides that the reasonableness of a party's response to a notice to admit cannot be determined until after trial.

Case Information

UID:
2001-014-504
Claimant(s):
HUMBERTO ACOSTA
Claimant short name:
ACOSTA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
86740
Motion number(s):
M-62742
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Finz & Finz, P.C.By: Jay Feigenbaum
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Janet Polstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 19, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on the claimant's motion to strike the answer, to strike the defendant's response to a Notice to Admit and to issue subpoenas: Notice of Motion, Affirmation in Support and Exhibits annexed; Affirmation in Opposition; Reply Affirmation.


By this motion, the claimant seeks the Court's determination that the matters contained in the claimant's Notice to Admit be deemed admitted, based upon what the claimant contends is the defendant's failure, in its amended response to the Notice to Admit, to comply with the provisions of CPLR 3123(a).

The Notice to Admit consists of seven separate items. The claimant, in his submission, has not specifically raised any issue with respect to the defendant's response to item 7, so the Court has not considered it. It is clear that the defendant has denied item 1, and that it has admitted item 3. Whether or not the defendant's denial of item 1 is unreasonable is not subject to determination by the Court at this time. Any such determination can only be made "at or immediately following the trial," in accordance with the provisions of CPLR 3123(c). Such determination may be made regardless of the outcome of the trial.

Upon examination of the remaining items in the Notice to Admit (items 2, 4, 5 and 6), and of the defendant's amended response to them, the defendant has neither admitted nor specifically denied them. Nor has it set forth "in detail the reasons why [it] cannot truthfully either admit or deny those matters." The Court is satisfied, however, that the defendant's responses to each of these items amounts to an admission with "qualification or explanation," the only other response to a Notice to Admit provided for in CPLR 3123(a). Once again, whether or not the defendant's response to these items is unreasonable is not subject to determination by the Court at this time. As previously stated, such determination can only be made "at or immediately following the trial," in accordance with the provisions of CPLR 3123(c).

With respect to the claimant's application for subpoenas, the subpoenas submitted to the Court compel the presence at trial of the County Clerk of New York County and of an official of the New York State Department of Correctional Services. Given that the "qualification or explanation" in each of the defendant's responses to items 2, 4, 5 and 6 in the Notice to Admit consists of an admission to the contents of a certified document, it is unclear why the presence of these officials is necessary at trial. Counsel for the claimant is requested to submit appropriate subpoenas, or provide a written explanation of the need to compel the presence of these officials.

In accordance with the foregoing, the claimant's motion is granted solely to the extent that the Court will issue appropriate subpoenas; the claimant's motion is in all other respects denied.

A pre trial conference is hereby scheduled for February 9, 2001 at 10:00 AM.


January 19, 2001
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims