New York State Court of Claims

New York State Court of Claims

ROBERTS v. THE STATE OF NEW YORK, #2003-015-370, Claim No. 105344, Motion No. M-67414


Court granted State's motion for a protective order limiting further discovery in long fought appropriation action where it appeared that information sought by claimants had either been provided previously or was non-existent.

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:
William V. Roberts and Janet M. Roberts, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael A. Sims, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 2, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for a protective order striking portions of claimants' second demand to produce documents and things pursuant to CPLR 3103 and 22 NYCRR §§ 206.8 and 206.9 and further denying, limiting, conditioning and/or regulating the use of a disclosure device to prevent abuse is granted. By decision and order dated June 30, 2003 and filed July 9, 2003 the Court denied claimants' motion for an order compelling responses to their then outstanding discovery demands without prejudice to the making of a more specific, particularized motion detailing the manner in which the defendants had allegedly failed to provide proper responses to their demands. Claimants were given 60 days from service of the decision and order to make their motion. The defendant's cross-motion for a protective order was denied as academic.

It does not appear from Court records that a second motion to compel responses to outstanding discovery was made. Rather than pursuing such a motion claimants served upon defense counsel on August 8, 2003 a "2nd Demand to Produce Documents and Things." That second demand is the subject of the instant motion for a protective order. Specifically, the defendant seeks an order striking or denying claimants' demands numbered 1, 2, 3, 8, 9, 11 and 12 as burdensome, unnecessary and/or privileged. The above-referenced demands seek the following:
1. Copy of Overlay showing 1854 Map of Rensselaer County conforming to the route of current Best Road, September 15, 199 [sic] and 1930.

2. Copy of Contract Plans prepared by the State of New York in preparation of the 1903, 1930 and 1939 road improvements of Best Road, County of Rensselaer.

3. Copy of PHOTOGRAMMETRIC SURVEY OF County Route 55 (Best Road) in the towns of North Greenbush, East Greenbush and Sand Lake, including all photo strips taken.

* * *

8. Copy of Non Party witness statement, as stated in paragraph 9 of DEFENDANTS ORDER TO SHOW CAUSE dated June 16, 2003.

9. Copy of Analysis of Claimants Survey map previously supplied to you as stated in paragraph 9 of Defendants ORDER TO SHOW CAUSE DATED June 16, 2003.

* * *

11. Copy of all surveyors notes pertaining to 1998 reconstruction of Best Road, County route [sic] 55.

12. Copy of Survey to lay out Nassau Turnpike by Stephen Van Rensselaer, Chauncey Humphrey and John Townsend enacted by legislation April 10, 1824.

Section 3103 (a) of the CPLR under which the instant application for a protective order was made provides:
§ 3103. Protective orders.

(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.

While the decision as to whether to issue a protective order is entrusted to the sound discretion of the Court it may be granted "only upon a factual showing of prejudice, annoyance or privilege" (State of New York v General Elec. Co., 215 AD2d 928, 929; Carella v King, 198 AD2d 567, 568; Brignola v Pei-Fei Lee, M.D.,P.C., 192 AD2d 1008, 1009).

Defense counsel alleges in his supporting affirmation that claimants' second demand seeks privileged material prepared for litigation and/or trial, material which is irrelevant and immaterial to the claim and that some of its demands are incomprehensible. Except for counsel's assertions of privilege treated below and his assertions of redundancy which may support a claim of annoyance his affirmation is particularly short on facts tending to support the issuance of a protective order. The Court's job, however, is complicated by claimants' failure to oppose the motion with anything more than conclusions or general assertions that the motion should be denied.

In an effort to avoid further motion practice the Court has chosen to parse the second demand in light of the defendant's allegations on the motion. Defendant's allegations which are not refuted are accepted as true for purposes of this motion.

Demand number 1 is found to be incomprehensible as written and no response to it is required. Demand number 2 appears from documents submitted on prior motions to have been satisfied and no additional response to such demand is required. It appears further that the defendant previously supplied claimants with a Project Report containing a photogrammetric survey of the subject premises and surrounding area and no further response is required with reference to demand number 3.

It appears that demand number 8 seeks privileged material apparently prepared in anticipation of litigation and as such is not a proper subject of disclosure pursuant to CPLR 3101 (d) (2). Similarly, demand number 9 apparently seeks the mental impressions, conclusions or opinions of defendant's representative allegedly prepared with counsel's advice for use in the defense of this action and is therefore not a proper subject of disclosure.

Demand 11 appears to be a duplicative request for material (surveyor's notes) which were previously provided to claimants as part of the defendant's Project Report. Demand 12 cannot be satisfied since the defendant has been unable to locate a copy of the centerline survey referenced in the 1824 legislation concerning the Nassau Turnpike. The defendant cannot be forced to produce material which either does not exist or cannot with due diligence be found.

Defendant's motion for a protective order is granted to the extent that the Court directs that demands number 1, 2, 3, 8, 9, 11 and 12 of claimants' "2nd Demand to Produce Documents and Things" are hereby vacated and no response thereto by the defendant shall be required.

December 2, 2003
Saratoga Springs, New York
Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 18, 2003;
2. Affirmation of Michael A. Sims, dated September 18, 2003 with exhibits;
3. Affidavit of Janet M. Roberts sworn to October 1, 2003 with exhibits.