New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2002-015-225, Claim No. 103284, Motion No. M-64351


Failure of State to respond to or to object to written interrogatories with reasonable particularity within 20 days of service forecloses all inquiry into propriety of information sought except for allegations of privilege or that said interrogatories are palpably improper. Court then examined outstanding interrogatories and determined some to be palpably improper and directed that remaining questions be answered

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:
Antonio Brown, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 21, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order compelling the defendant to provide responses to written interrogatories pursuant to CPLR 3124 is granted in part and denied in part. The claim by a pro se inmate seeks to recover money damages for personal injuries allegedly sustained as a result of an assault and battery by named and unnamed correction officers at the Oneida Correctional Facility (Oneida) on August 28, 2000 as well as another, separate assault and battery by unnamed correction officers at the same facility on August 29, 2000.

By decision and order dated April 4, 2001 (filed April 9, 2001) this Court denied an earlier motion (M-62961) seeking to compel oral depositions of certain Department of Correctional Services (DOCS) employees, including the Superintendent of Oneida, and granted the State's cross-motion (CM-62991) for a protective order. In that decision and order the Court suggested that claimant could obtain the information sought by means of written interrogatories issued pursuant to CPLR § 3130. Following the Court's advice claimant served several sets of written interrogatories dated August 24, 2001 on counsel for the defendant who requested additional time to obtain the answers due to the large number of individuals from whom answers were requested. By letter dated September 14, 2001 defense counsel solicited claimant's consent to an extension of time, until November 9, 2001, to produce the answers to the interrogatories. Counsel also advised claimant in that letter that there would be no responses regarding correction officers' ages, participation in prior incident(s) involving the use of force or written statements pertaining to any grievance claimant may have filed on the grounds that such requests were irrelevant, unnecessary and burdensome. Specifically, defense counsel objected to interrogatory #5 for Sergeant Barnes and interrogatory #3 for Correction Officer Clark. Counsel also stated that interrogatories directed to Superintendent Hollins were improper, unnecessary and irrelevant and would not be answered. In an attempt to avoid what defense counsel characterized as unnecessary motion practice aimed at obtaining a protective order, counsel asked claimant to withdraw the interrogatories to which objections had been stated.

In response to defense counsel's letter claimant agreed to extend the defendant's time to answer the interrogatories but only until October 19, 2001. On this motion claimant asserts that defense counsel never made a motion for a protective order after receiving claimant's letter response (see paragraph "5" of claimant's supporting affidavit) and never filed a notice of objection to any of the interrogatories within 10[1] days of their service. Claimant argues that the State's failure to timely object and/or its failure to seek a protective order has deprived the State of its right to oppose the instant motion to compel responses to the interrogatories.

Subsequent to the service and filing of the instant motion, claimant notified the Clerk of the Court by letter dated November 18, 2001 that he had received answers to all of the interrogatories which were the subject of this motion except the set directed to Superintendent Hollins. Claimant then informally requested a modification of his motion to compel answers solely to that outstanding set of interrogatories. It does not appear on this record that a copy of claimant's November 18, 2001 letter to the Clerk was served upon the Office of the Attorney General.

In his affirmation in opposition to the motion defense counsel confirms that the interrogatories directed at correction officers and sergeants have been answered and requests, in that respect, that the motion be denied. Counsel acknowledges, however, that the interrogatories directed at Superintendent Hollins were not answered and alleges that the question of their appropriateness remains for judicial resolution. Defense counsel argues that the Hollins interrogatories do not meet the test of materiality and relevance established by case law interpreting CPLR § 3101 (a).

It is settled that "[t]he scope and supervision of discovery is generally within the sound discretion of the court where the action is pending" (Carella v King, 198 AD2d 567, 568). It is equally established in the Third Department that "CPLR 3101 (a) authorizes the disclosure of all material and relevant evidence and is accorded a liberal construction in favor of disclosure (Kadan v Volkswagen of Am., 129 AD2d 948, 949; Nitz v Prudential-Bache Securities, 102 AD2d 914, 915). The test to be applied by a court "in determining whether or not to allow discovery is 'one of usefulness and reason'"(Goldberg v Blue Cross of Northeastern N.Y., 81 AD2d 995, 996, quoting Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406-407).

CPLR 3133 (a) governing the service of answers or objections to interrogatories directs the following:
(a) Service of an answer or objection. Within twenty days after service of interrogatories, the party upon whom they are served shall serve upon each of the parties a copy of the answer to each interrogatory, except one to which the party objects, in which event the reasons for the objection shall be stated with reasonable particularity.

The failure of a party served with interrogatories to either respond thereto or object stating its reason(s) with reasonable particularity within 20 days of service "forecloses all inquiry into the propriety of the information sought except where the objection involves a matter privileged under CPLR 3101"(Gardner v Kawasaki Heavy Indus., 213 AD2d 840, 841 see, Albany Custom Floors v Urbach, Kahn & Werlin, 128 AD2d 924; County of Chemung v Fenwal, Inc., 111 AD2d 551). A further exception exists where the interrogatories are palpably improper (Alford v Progressive Equity Funding Corp., 144 AD2d 756).

The defendant has not raised the issue of privilege regarding the interrogatories served upon the Superintendent and, accordingly, the Court's inquiry is limited to whether the interrogatories posed are palpably improper.

Viewing the subject interrogatories (Defendant's Exhibit D) from this perspective the Court makes the following determination: Items # 1, # 2, # 3 (with reference to the alleged use of force), and # 7 (limited to the 3 year period preceding August 28, 2000) shall be answered. Items # 4, # 5, #6 and # 8 are found by the Court to be palpably improper and no responses are therefore required.

Responses to the specific interrogatories listed above shall be obtained from Superintendent Hollins and served upon the claimant within 30 days of service of a copy of this decision and order upon the parties by the Clerk of the Court.

February 21, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 6, 2001;
  2. Affidavit of Antonio Brown sworn to November 6, 2001 with exhibits;
  3. Letter dated November 18, 2001 from Antonio Brown;
  4. Affirmation of Joel L. Marmelstein dated November 29, 2001, with exhibits;
  5. Letter dated November 29, 2001 from Joel L. Marmelstein, with attachment.

[1]CPLR Rule 3133 (a) provides a 20 day period for answers or objections to interrogatories. This time period was extended as part of the Legislature's overhaul of CPLR article 31 contained in L 1993, ch 98, §13, eff Jan. 1, 1994 which also shifted the burden of obtaining the demanded information to the party seeking disclosure (see, CPLR 3124).