New York State Court of Claims

New York State Court of Claims

HEROUARD v. THE STATE OF NEW YORK, #2003-030-526, Claim No. 105576, Motion No. M-66213


Synopsis


Claimant's motion to compel response to second request for interrogatories and to Notice to Admit granted; request for sanctions denied.

Case Information

UID:
2003-030-526
Claimant(s):
MARC HEROUARD
Claimant short name:
HEROUARD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105576
Motion number(s):
M-66213
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MARC HEROUARD, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
March 28, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 6 were read on Claimant's motion for an order


imposing sanctions pursuant to Civil Practice Law and Rules §3126:

1,2 Notice of Motion, Affidavit in Support by Marc Herouard, Claimant, sworn to December 31, 2002

3 Affirmation in Opposition by Jeane L. Strickland Smith, Assistant Attorney General, dated February 4, 2003, and attached exhibits

4 Letter to Court dated February 5, 2003 by Marc Herouard, Claimant

5,6 Filed Papers: Claim, Answer



After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Claimant alleges in Claim Number 105576 that he received improper medical care with respect to his complaints of back pain while he was an inmate at Fishkill Correctional Facility (hereafter Fishkill).

In his Affidavit in Support of the present motion, Claimant asserts that on or about September 25, 2002 he served a second request for answers to interrogatories upon Defendant, along with a notice to admit, requesting a response within twenty (20) days.[1] As of the date of his affidavit, no response had been received. He asks the Court to direct defendant to provide the requested information or otherwise respond and/or impose a monetary or other sanction.

In an Affirmation in Opposition, the Assistant Attorney General first refers to Claimant's original request for interrogatories served upon the Defendant on May 8, 2002, and the subject of a prior Decision and Order of this Court directing the State to respond to same. [See, Marc Herouard v State of New York, Claim No. 105576, Motion No. M-65423, August 8, 2002, Mignano, J.]. Claimant's motion does not address this earlier set of interrogatories, but rather the second set of interrogatories Defendant acknowledges was received on September 30, 2002 in the Attorney General's Office, along with the Notice to Admit. [Exhibits "3" and "4", Affirmation of Assistant Attorney General].

With regard to the discovery requests that are the subject of this motion, Defendant states that Claimant has "...failed to identify or state the inadequacies of the defendant's earlier response. Claimant should be precluded from serving a supplemental interrogatory without a showing that the response was inadequate." [Affirmation of Assistant Attorney General, ¶5].

As noted by Claimant, the second set of interrogatories request different information from that asked for in the first set, and consist of five questions. Additionally, there is no prohibition against serving an additional set of interrogatories. See, Civil Practice Law and Rules §§3130, 3132. Certainly, like other discovery requests, upon proper application for a protective order a court would consider whether the requests are subject to protection. While the Court will not determine here, whether these questions are within the proper scope of interrogatories, it does hereby determine that a response to this properly served request of some kind is due, even if it is to indicate that the requests are somehow improper. See, Civil Practice Law and Rules §3133. The "general objection" defendant has asserted, categorizing the interrogatories as "irrelevant, overbroad and unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence", [Affirmation of Assistant Attorney General, ¶6], simply does not suffice.

Similarly, with respect to the properly served Notice to Admit, the Defendant has not responded in a timely fashion. See, Civil Practice Law and Rules §3123. In the opposing papers Defendant merely avers without any specificity that the Notice to Admit is "improper."

Accordingly, Claimant's motion to compel is granted to the extent that the State is directed to respond to the Second Request for Interrogatories and to the Notice to Admit within twenty (20) days of the date of the filing of this decision and order. Claimant's request that sanctions be imposed pursuant to Civil Practice Law and Rules §3126 is hereby denied. That provision allows a Court to impose sanctions for a party's willful failure to disclose information that a Court finds should have been disclosed, or for a failure to obey an order to disclose. Here, the State has not refused to obey a court order, and there is no conclusive evidence that the State has willfully failed to respond.


March 28, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] Copies of the Second Request for Interrogatories were filed in the Office of the Chief Clerk of the Court of Claims as required, as were the Notice to Admit and an Affidavit of Service reflecting service of the Second Request for Interrogatories and the Notice to Admit on September 30, 2002. See, 22 NYCRR §206.5(c).