New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2002-028-026, Claim No. 105260, Motion Nos. M-64770, M-64892


Claimant's application for an Order to Compel responses is denied and Defendant's request for a protective order is granted to the extent requested.

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):
M-64770, M-64892
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Kathleen M. Resnick, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 3, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion (M-64770) for a

protective order pursuant to CPLR § 3103 and Claimant's motion (M-64892) to compel disclosure pursuant to CPLR § 3124:
Motion No. M-64770

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General
Kathleen M. Resnick, filed February 22, 2002, (Resnick Affirmation), with annexed Exhibit A.
2) Affirmation in Opposition[1] of Chester Davidson filed March 4, 2002 (Davidson Opposition).

Motion No. M-64892

1) Notice of Motion to "Compel Disclosure of Combined Request of Production of Documents & Interrogatories" and supporting affidavit of Chester Davidson, filed February 25, 2002 (Davidson Affidavit).

• abAffirmation in Opposition of Assistant Attorney General Kathleen M. Resnick,

filed March 1, 2002, (Resnick Opposition), with annexed Exhibits A-B.

• abReply Affidavit of Chester Davidson filed March 11, 2002 (Davidson Reply).

Filed Papers: Claim filed November 26, 2001; Answer filed January 2, 2002.

The facts of the underlying Claim are straightforward. Claimant, at all times relevant an inmate, alleges the Defendant was negligent when it dispensed the wrong prescription medication to Claimant upon the refill of an existing prescription (Claim, ¶ 7). Claimant further alleges that he was the subject of retaliatory discipline in violation of Correction Law § 138 for reporting the aforementioned negligence (Claim, ¶ 8).

Defendant's Motion for a Protective Order

Defendant moves for a protective order pursuant to CPLR § 3103 with regard to Claimant's "Notice to Admit Truth of Facts" (see, Resnick Affirmation Exhibit A). Of the forty-three (43) admissions that Claimant seeks to have Defendant make, Defendant has waived objection to, and will answer nine (9) (Resnick Affirmation, ¶ 6). Claimant opposes the motion alleging the information sought is relevant and that Defendant's motion is really "a cloak to cover up staff misconduct" (Davidson Opposition, ¶ 4).

CPLR § 3123 provides that a party may request another party to admit the "truth of any

matters of fact . . . as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial . . ." It is well established that "[a] notice to admit pursuant to CPLR § 3123 [a] is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admissions of fundamental and material issues or ultimate facts that can only be resolved after full trial" (Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6; Nader v General Motors Corporation, 53 Misc 2d 515, 516, affd 29 AD2d 632). CPLR § 3123 "is not a substitute for interrogatories or other disclosure devices that may be used to obtain information on disputable issues . . ." (Vol. 6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3123.05 at 31-563) nor is it the obligation of the Court to prune a notice to admit which contains requests which may be properly answerable interspersed with others which are not (see, Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453, 454; Octave v State of New York, Ct Cl, October 24, 2000 [Claim No. 97393, Motion No. M-62068], Read, P. J., unreported). Instead, appellate courts have repeatedly affirmed the vacatur of such mixed notices to admit in their entirety (see, Berg v Flower Fifth Ave. Hosp., 102 AD2d 760, 761; Lewis v Hertz Corp., 193 AD2d 470).

Claimant's request for admissions is improper in that a number of questions seek admissions regarding contested facts relating to the essence of the dispute between the parties[2] (State of New York v Trionix Research Lab., 266 AD2d 687) and in that other questions go well beyond the scope of inquiry intended for this disclosure device[3]. As a result, the defendant's motion for a protective order is granted to the extent requested.

Claimant's Motion to Compel

The Court begins by rejecting Claimant's allegation that Defendant's answers were untimely. The demand made by Claimant directed that responses be served within thirty (30) days of service (see, Resnick Opposition, Exhibit A; see also, CPLR § 3120[2], response time shall not be less than twenty [20]days after service). Although the affidavit of service indicates the demand was mailed on January 8, 2002; the envelope is postmarked January 10, 2002 (see, Resnick Affirmation, Exhibit A). As such, Defendant's answers served on February 8, 2002 were made within the time demanded. Moreover, to the extent Defendant failed to challenge the propriety of the notice for discovery and inspection within the time prescribed by CPLR § 3122 or the interrogatories within the time prescribed by CPLR § 3133, inquiry is still permitted with regard to material that is privileged or requests that are palpably improper (see, Saratoga Harness Racing Inc. v Roemer, 274 AD2d 887 [document production]; Gardner v Kawasaki Heavy Industries Ltd., 213 AD2d 840 [interrogatories as to privileged matters]; Alford v Progressive Equity Funding Corp., 144 AD2d 756 [as to palpably improper interrogatories]). Overly broad or unnecessarily burdensome demands may be considered palpably improper (Haller v. North Riverside Partners, 189 AD2d 615).

Here, Defendant responded to an arguably confusing set of papers which combined document production and interrogatories into a single paper. (The Court notes Claimant's fourth "interrogatory" is in fact a demand pursuant to CPLR § 3101(d) for expert disclosure.) Defendant treated the entirety as a request for production (Resnick Affirmation, ¶ 4) and in response Defendant asserted, inter alia, that each request was overbroad and might require disclosure of privileged material (see, Resnick Affirmation, Exhibit B) and to the extent possible responded to each inquiry. Defendant in opposition reasserts these positions.

CPLR article 31, mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR § 3101[a] ). The case law, in turn, makes clear that the words "material and necessary" are to be liberally construed "to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity". The test, quite simply, is one of "usefulness and reason" (Mitchell v Stuart, __ AD2d __ , 2002 WL 589765, 2002 N.Y. Slip Op. 03079[3rd Dept, April 18, 2002], citations omitted).

Claimant's application to compel a response to his single request to produce every document "herein reported as the basis for this claim" (Resnick opposition, Exhibit A) is denied as overbroad, burdensome and palpably improper.

Turning to the "Interrogatories", the Claimant has been provided with answers to interrogatories "3" and "4". As previously noted, interrogatory "4" is an expert demand to which Defendant has stated it has yet to retain an expert. In response to interrogatory "3", the Defendant has identified the "Health Services Policy Manual". As such Claimant is not entitled to an order compelling a response. Inasmuch as this claim has its origin in the alleged negligence of the Defendant in dispensing the wrong medication, on this record, requests regarding disciplinary records (Interrogatory "1") are palpably improper and denied. As to interrogatory "2", Defendant has asserted that certain materials are privileged as being prepared for the Attorney General's office, and that other materials as received will be provided. The Court is aware that in the highly regulated prison environment generally other non-privileged reports are made and that there is often times a time lag before such materials are received from the facility. As such, and in light of counsel's continuing obligation, the Court finds an order to compel is unwarranted.

Based upon the foregoing it is

ORDERED, that Claimant's motion to compel disclosure is denied for the reasons set forth herein; and it is further

ORDERED that Defendant's motion for a protective order is granted.

May 3, 2002
Albany, New York

Judge of the Court of Claims

[1] Although Claimant captioned his opposition papers as an "affirmation", which he is not authorized to submit (see, CPLR § 2106) he has appended to the "affirmation" a verification duly notarized and as such the Court accepts same for this motion as if it were an affidavit in proper form. Claimant is directed to familiarize himself with the CPLR and the proper form of papers to be considered by the Court.
[2] See, e.g., Number "26" which asks "Is it true that, claimant was put in the Special Housing Unit (SHU), (BOX) for reporting the negligent conduct committed by the Medical Staff in Greene Correctional Facility, YES OR NO?" (Resnick Affirmation, Exhibit A)
[3] See, e.g., Number "30" asks "Is it true, the claimant is New York State property, YES OR NO?" (Resnick Affirmation, Exhibit A)