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
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.
1. Notice of Motion and Supporting Affidavit of Reginald McFadden, pro
2. Affirmation in Opposition of Glenn C. King, Esq., AAG
3. Reply Affidavit of Reginald McFadden, pro se
Filed papers: Claim; Answer