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.
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
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