New York State Court of Claims

New York State Court of Claims

McFADDEN v. THE STATE OF NEW YORK, #2002-032-027, Claim No. 105938, Motion No. M-65995


Claimant's motion for an order imposing monetary sanctions pursuant to

CPLR 3126 is denied as defendant's action in bringing an earlier motion for a protective order did not constitute a failure to respond to discovery demands that was "willful, contumacious or in bad faith."

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:
Reginald McFadden, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Esq., Assistant Attorney GeneralOf Counsel
Third-party defendant's attorney:

Signature date:
February 4, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


By this motion, claimant asks the Court to impose sanctions, pursuant to CPLR 3126, for the alleged willful, bad faith failure to comply with previous discovery demands and requiring motion practice to resolve the matter. The motion is denied on the ground that it was the actions of claimant, not defendant, that necessitated the earlier motion.

In the previous order, this Court denied defendant's motion for a protective order (Decision and Order, Motion No. M-65558, dated October 4, 2002), brought in connection with a demand captioned "Demand for Disclosure and Production of Documents" which had been served by claimant. Since it was not, in fact, a demand for the production of documents, the Assistant Attorney General then representing the State elected to treat it as a request for a deposition on written questions (CPLR 3108) and consequently moved for a protective order on the ground that such a discovery demand cannot be served without the consent of all parties. After reviewing the demand served by claimant, the Court determined that it was more accurately characterized as a set of written interrogatories (CPLR 3131), which could be served without defendant's consent. Accordingly, the State's motion for a protective order was denied, and defendant was directed to respond to the discovery demand.

Claimant now moves for an order directing defendant to pay him the sum of $250.00 to compensate him for the money and time that he spent in opposing the previous motion.[1] This sanction, he states would deter the State from making illogical assumptions and wasting valuable time in the future (McFadden affidavit, ¶5). In his responsive papers, claimant indicates that the Court's authority for such sanction can be found in CPLR 3126, which allows a court to intervene when a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed."

CPLR 3126 does not expressly authorize courts to impose money sanctions in such situations but, rather, permits them to make such orders "as are just." Certain examples of the types of orders that may be issued are listed in the statute, but the list is not exhaustive. It has been held that, in the proper situation, money sanctions may be imposed for a party's willful or frivolous conduct (i.e., conduct based on material factual statements that are false) in this regard (see, Klein v Seenauth, 180 Misc 2d 213 [Queens Co. Civil Ct 1999]). Thus, at a court's discretion, CPLR 3126 has been used to personally fine an Assistant Attorney General whose deliberate conduct prevented depositions from going forward (Kulers v State of New York, 141 Misc 2d 1079 [Ct Cl 1988]). At the same time, it is well-established that because "the overriding objective of CPLR article 31 is not punitive but, rather, the liberal and full disclosure" of all relevant information (Klein v Seenauth, supra, at 217, citing Miller v Duffy, 126 AD2d 527, 528 [2d Dept 1987]), any sanction imposed is to be fashioned as narrowly as possible under the circumstances of each individual case (see, DiDomenico v C & S Aeromatick Supplies, 252 AD2d 41 [2d Dept 1998]). Accordingly, any order imposing drastic remedies such as striking a pleading or preclusion for nondisclosure must be based on a failure to produce discovery documents that is "willful, contumacious or in bad faith" (Fitterer v Riedlinger's Towing Serv., 271 AD2d 403, 404 [2d Dept 2000]). In the Court's view, this threshold must also be met before monetary sanctions are imposed.

In the instant situation, if it was error on the part of any party that created confusion and caused unnecessary motion practice, it was claimant, not defendant, that was at fault. By serving a discovery demand that was, without doubt, improperly captioned, claimant required defense counsel to guess as to the true nature of the demand. Counsel for defendant could have simply rejected the demand as improper, which would have required claimant to either re-draft the document or bring a motion himself to compel a response. Instead, the Assistant Attorney General whom claimant seeks to sanction made a best guess as to the true nature of the demand and then took steps to have the Court either confirm that guess or, as happened, more accurately define the document and direct that a response be provided. There is absolutely no basis for the imposition of sanctions on defendant in these circumstances.

Claimant's motion is denied.

February 4, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an order imposing a sanction pursuant to CPLR 3126:
1. Notice of Motion and Supporting Affidavit of Reginald McFadden, pro se

2. Affirmation in Opposition of Glenn C. King, Esq., AAG

3. Reply Affidavit of Reginald McFadden, pro se

Filed papers: Claim; Answer

[1] Claimant does not explain how responding to defendant's earlier motion resulted in this expense.