New York State Court of Claims

New York State Court of Claims

SANDSON v. THE STATE OF NEW YORK, #2003-015-371, Claim No. 106502, Motion Nos. M-67085, M-67361


Pro se claimant's motion seeking sanctions for defendant's failure to verify discovery responses is denied. Defendant's motion for a protective order aimed at a third notice to admit is granted since claimant was seeking admissions to disputed matters.

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-67085, M-67361
Cross-motion number(s):

Claimant’s attorney:
Andrew Sandson, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 18, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The pro se claimant's motion seeking an order sanctioning the defendant for failure to verify their [sic] responses to claimant's First Demand For Admissions and for failure to respond at all, to claimant's Second Demand For Admissions in alleged violation of CPLR 3123 (a) and 3102 (f)" is denied. Defendant's motion for a protective order pursuant to CPLR 3103 which is directed toward a third demand for admissions dated August 16, 2003 is granted. The instant claim filed on August 14, 2002 seeks $1,000,000.00 in damages for alleged personal injuries stemming from the Department of Correctional Services' (DOCS) negligent denial of prescribed medical treatment for claimant's hepatitis C. Specifically, claimant alleges that DOCS repeatedly denied his requests for prescription medication ("Pegitron + Ribavarin") allegedly prescribed by a DOCS physician in June 2001. On March 4, 2003 claimant served upon the defendant a "demand for admissions"[1] which contains numerous statements which claimant wishes the defendant to admit and which appear to go to the heart of the controversy. In his affidavit in support of the motion the claimant alleges that the defendant's March 13, 2003 responses to his demand are vague and unverified. He also takes issue with the defendant's April 8, 2003 supplemental response to claimant's demand for admissions on the ground that the response is likewise not verified.

Claimant alleges that he served a verified reply to the defendant's responses and that the defendant has failed to in turn reply within 20 days as required by CPLR 3123 (a). He seeks sanctions against the defendant on the grounds (1) that the responding assistant attorney general cannot respond to demands made against other individuals without supplying an affidavit from each such individual granting her the authority to do so; (2) that the responses are vague thereby subverting the statutory purpose of the admissions; and (3) that such responses were not verified[2]. Defendant opposed the motion on the ground that claimant was seeking to use his notices to admit (i.e., his first and second "Demand For Admissions") for a purpose beyond that authorized by CPLR 3123. Specifically, defense counsel asserts that unlike interrogatories a notice to admit elicits a response from the party rather than admissions from particular individuals[3]. Moreover, she alleges that many of the claimant's "demands" seek an admission to statements containing a mixture of items that might be admitted along with other items which are clearly controverted. Defense counsel alleges in her opposing affirmation at paragraph 3 that a verified second supplemental response to the claimant's first notice and a response to the second notice (also verified) were served on July 28, 2003. Claimant did not file a reply to the defendant's opposition papers and the defendant's allegations in this regard stand unrefuted.

The penalty which may be imposed against a party for unreasonably withholding an admission in response to a notice to admit is prescribed in section 3123 (c) of the CPLR which states:
(c) Penalty for unreasonable denial. If a party, after being served with a request under subdivision (a) does not admit and if the party requesting the admission thereafter proves the genuineness of any such paper or document, or the correctness or fairness of representation of any such photograph, or the truth of any such matter of fact, he may move at or immediately following the trial for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney's fees. Unless the court finds that there were good reasons for the denial or the refusal otherwise to admit or that the admissions sought were of no substantial importance, the order shall be made irrespective of the result of the action. Upon a trial by jury, the motion for such an order shall be determined by the court outside the presence of the jury.
It is obvious from the statutory language set forth above that claimant's motion must be denied as premature since a motion for relief under the statute must be made at or immediately following the trial. The instant pre-trial motion is not countenanced by the statute (see, Glasser v City of New York, 265 AD2d 526).

Moreover, "[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 admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial" (Meadowbrook - Richman, Inc. v Cicchiello, 273 AD2d 6; Washington v Alco Auto Sales, 199 AD2d 165). A review of claimant's "demands" makes clear that claimant improperly sought to use a notice to admit to elicit admissions to matters that are in dispute in this lawsuit. Defendant has no obligation to furnish admissions in response to such demands (see, Orellana v City of New York, 203 AD2d 542, 543).

Claimant's motion for sanctions is denied in all respects.

After service of a "Third Demand for Admissions" dated August 16, 2003 the defendant moved for a protective order pursuant to CPLR 3103 on the grounds that the demand served no useful purpose in light of the State's responses to claimant's prior demands and that the demand itself is improper and was designed to unreasonably annoy the defendant. Claimant opposed the motion and requested that unspecified penalties be assessed against the defendant.

The issuance of a protective order is governed by section 3103 of the CPLR which, in relevant part 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.
As noted above, a notice to admit is a disclosure device which may be used to solicit admissions from a party as to documents, photographs, papers and matters of fact which are not disputed. As the defendant argues on the instant motion, a notice to admit may not be used to compel admission to disputed or contested matters (see, Vasquez v Vengroff, 295 AD2d 421). Where a party seeks admissions to a mixture of proper and improper matters such as causation in a medical malpractice action the courts have generally vacated the entire notice to admit finding that it is not the Court's obligation to prune such a pre-litigation device in order to segregate proper demands from those which are improper (see, Berg v Flower Fifth Ave. Hosp., 102 AD2d 760). In such instances a protective order shall be issued (see, Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453).

Despite the advice and admonitions of defense counsel as to the nature of a proper notice to admit, claimant continued to serve additional notices seeking both allowable and non-allowable admissions. His conduct in this regard appears to have been intended to annoy or harass the defendant and therefore the defendant's motion for an order vacating the third demand for admissions is granted.

December 18, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-67085
  1. Notice of motion, undated;
  2. Affidavit of Andrew Sandson sworn to June 21, 2003 with exhibits;
  3. Affirmation of Belinda A. Wagner dated July 30, 2003 with exhibits;

Motion No. M-67361

  1. Notice of motion dated September 5, 2003;
  2. Affirmation of Belinda A. Wagner dated September 5, 2003 with exhibits;
  3. "Notice of Motion In Opposition To Defendants [sic] Motion For Protective Order"dated September 13, 2003;
  4. Affidavit of Andrew Sandson sworn to September 13, 2003 with exhibits.

[1].Apparently intended as a notice to admit pursuant to CPLR 3123.
[2].In her opposing affirmation defense counsel alleges that the State's responses were indeed verified.
[3].In this regard it must be noted that the sole proper defendant in this action is the State of New York and there are no individually named defendants.