New York State Court of Claims

New York State Court of Claims

MCFADDEN v. THE STATE OF NEW YORK, #2003-032-070, Claim Nos. 103390, et al., Motion Nos. M-66233, et al.


Synopsis


In connection with multiple claims and multiple motions brought by prisoner inmate, appearing pro se, several claims are consolidated; all motions to compel and for sanctions are denied; all of claimant's outstanding discovery demands are stricken; and fixed size and other limitations are placed on future discovery demands.

Case Information

UID:
2003-032-070
Claimant(s):
REGINALD MCFADDEN This motion relates to the following claims:103390, 103763, 104262, 105851, 105938, 105958, 106195, 106216, 106217, 106235, 106486, 106802, 106926, 107038, 107177, 107203, 107357, 107358, 107510, and 107633. This decision and order decide the following motions: M-66205, M-66229, M-66230, M-66231, M-66232, M-66233, M-66276, M-66285, M-66286, M-66295, M-66296, M-66401, M-66455, M-66456, M-66457, M-66473, and M-66672.
Claimant short name:
MCFADDEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
This motion relates to the following claims:103390, 103763, 104262, 105851, 105938, 105958, 106195, 106216, 106217, 106235, 106486, 106802, 106926, 107038, 107177, 107203, 107357, 107358, 107510, and 107633. This decision and order decide the following motions: M-66205, M-66229, M-66230, M-66231, M-66232, M-66233, M-66276, M-66285, M-66286, M-66295, M-66296, M-66401, M-66455, M-66456, M-66457, M-66473, and M-66672.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103390, et al.
Motion number(s):
M-66233, et al.
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Reginald McFadden, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Esq., Assistant Attorney General, Joseph F. Romani, Esq., Assistant Attorney General,
Mary B. Kavaney, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 30, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Since March 1997, claimant Reginald McFadden has commenced a total of twenty-three claims in this Court and, in connection with those claims, a total of twenty-three motions. The rate at which his litigation has increased is even more noteworthy. Between 1997 and 2001, five claims were filed[1]; in 2002 twelve claims were filed[2]; and six have been filed during the first six months of 2003.[3] The trend is even more marked with respect to the motions: three were

commenced between 1997 and 2001[4]; four were commenced in 2002[5], and during the first four months of 2003, claimant has commenced sixteen motions and one cross-motion.[6] During the same time period, the State has brought five motions in connection with claimant's actions.[7]


Defendant's Motion No. M-66233: motion for consolidation

Counsel for defendant requests that the Court consider consolidating a number of these claims because they involve common questions of law and/or fact and because it would expedite and clarify the discovery process for both parties. Specifically, counsel suggests that the following claims could be readily consolidated:
Claim No. 103390 Filed: Nov. 14, 2000 Accrued: July - October 2000 Clinton CF
Negligence in medical treatment of infected right ear and tuberculosis, plus allegations relating back to diagnosis of tuberculosis in 1995

Claim No. 104262 Filed: May 11, 2001 Accrued: January - May 2001 Clinton CF
Negligence in medical treatment of ears and management of hearing loss; failure to provide proper accommodations for hearing-impaired; improper treatment leading to a greater risk of having tuberculosis

Claim No. 105938 Filed: April 19, 2002 Accrued: March-April 2002 Clinton CF
Facility nurse's failure to perform a medical test, refusal of other medical treatment, and violation of rights to confidentiality re: medical condition

Claim No. 105958 Filed: April 24, 2002 Accrued: April 2002 Clinton CF
Facility nurse refused to follow doctor's order relating to medical treatment ordered for claimant

Claim No. 106195 Filed: June 7, 2002 Accrued: April- May 2002 Clinton CF
Failure to continue medical testing that delayed needed treatment; loss of personal property; failure to deliver packages

Claim No. 106216 Filed: June 13, 2002 Accrued: March-May 2002 Clinton CF
Improper conduct relating to blood tests by facility nurse; violation of rights to confidentiality re: medical condition

Claim No. 106217 Filed: June 13, 2002 Accrued: March 2002 Clinton CF
Failure to properly monitor blood levels, plus allegations relating back to diagnosis of tuberculosis in 1995.[8]


Claim No. 106235 Filed: June 17, 2002 Accrued: 2000-2002 Clinton CF, Downstate CF
Exposure to asbestos, exposure to lead paint, exposure to burning plastic, lack of suitable accommodations for hearing-impaired

Claim No. 106486 Filed: Aug. 9, 2002 Accrued: July 18, 2002 Clinton CF, Adirondack CF
Improper information sent to outside physician who was to examine claimant's ears, plus violation of privacy rights

Claim No. 106802 Filed: Oct. 17, 2002 Accrued: October 10, 2002 Clinton CF
Denial of adequate medical records and information, improper treatment of kidney diseases caused by improper tuberculosis treatment; inadequate medical care.


In support of his motion to consolidate these actions, counsel for defendant asserts that "discovery would be much more manageable and duplication of interrogatory responses would hopefully be minimized" (King affirmation I, ¶ 38). Claimant objects to consolidation because, he contends, it will "confuse the issues" and allow defendant "the option of denying discovery on other cases, unrelated to the one before this Court and to try to gain an un-fair [sic] advantage on any future settlement talks" (McFadden affidavit I, p 10).

When actions involve a common question of law and fact, the court may "order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings herein as may tend to avoid unnecessary costs or delay" (CPLR 602[a]). The ten claims listed above represent less than one-half of the claims that this claimant has commenced. For that reason alone, anything that would help in avoiding unnecessary effort, costs or delay would be a benefit. The primary allegations comprising at least eight of those claims involve common questions of both fact and law: whether defendant violated its duty to provide adequate medical treatment to claimant while he was housed at Clinton Correctional Facility and whether defendant violated legal requirements in its handling of claimant's medical information. These separate claims, therefore, are in fact more accurately considered as separate causes of action (see, CPLR 3014). Consolidation should greatly aid both parties in discovery, permitting specific pieces of information to be asked for, and provided only once, and then permitting them to be used by either party in connection with any relevant cause of action.

Accordingly, the Court grants that portion of defendant's motion for consolidation to the extent that [Claims No. 103390, 104262, 105938, 105958, 106216, 106217, 106486, and 106802 are hereby consolidated and shall be dealt with hereafter as one claim.] The consolidated claim will bear the earliest number, Claim No. 103390, and in the balance of this decision will be referred to as Claim No. 103390 (Consolidated). To avoid even more repetitious and essentially meaningless activity on the part of both parties, the pleadings of these claims shall be combined together, and those combined documents shall be considered the pleadings in Claim No. 103390 (Consolidated). Finally, because it is defendant that seeks consolidation of these claims, the Court is of the view that any jurisdictional defenses raised with respect to the individual claims filed after Claim No. 103390 have been waived.

Defendant's motion to consolidate is denied, however, with respect to Claims No. 106195 and 106235. In Claim No. 106195, the only allegations that relate to medical treatment are duplicated in Claim No. 105938, and the other causes of action are unrelated to claimant's medical treatment. The allegations relating to medical treatment are stricken, and otherwise the status of Claim No. 106195 is unchanged. The cause of action relating to medical treatment in Claim No. 106235 raises the question of whether claimant has been provided with accommodations suitable to a hearing impaired person under the ADA (Americans with Disabilities Act). To the extent that this cause of action arose in Clinton Correctional Facility, it is duplicative of Claim No. 104262. The other causes of action contained in Claim No. 106235 do not relate to medical treatment and arose at Downstate Correctional Facility, to which another judge of this Court is assigned. For these reasons, the status of Claim No. 106235 will remain unchanged.[9]

Defendant's Motion No. M-66233: motion for a protective order

As noted above, claimant has commenced 23 motions in connection with his 23 claims. Most of claimant's motions seek to compel defendant to respond to discovery demands that he has served. A review of the documentation before the court in connection with these claims and motions reveals that claimant's discovery demands are numerous, lengthy, highly repetitive and frequently in improper form. According to defense counsel, claimant has made more than 300 separate demands relating just to the ten claims considered in the motion to consolidate. As most of those demands seek information from or about the medical staff of Clinton Correctional Facility, the sheer number of the demands and the rapidity with which they have been served constitute, in counsel's view, harassment of the facility's medical staff (King affirmation I, ¶32). In addition, as the Court can see for itself, many of the demands are repetitive and the content of some of them highly inappropriate. Defense counsel asks the Court to "review the totality of claimant's demands regarding all of the claims in order to fully evaluate why defendant is making the drastic request for a protective order" (id, ¶ 28).

In the circumstances presented here, the Court has no difficulty in understanding why such relief is sought. In fact, consideration of this motion for a protective order will not be limited to the claims involved in the motion to consolidate and discovery motions (motions to compel or for sanctions) relating to those claims.[10] The Court will also consider any other claims that arose in Clinton Correctional Facility (or any other correctional facility to which this Court is assigned); any discovery motions relating to those claims; and any outstanding discovery demands in any of the claims noted that have not yet become the subject of a motion to compel, for sanctions, or for a protective order. The Court is convinced that the only way to achieve any order out of what can only be considered as the chaos of claimant's discovery patterns is to, as defense counsel advises, look at the overall problem. Defendant's motion for an order of protection, therefore, is deemed to relate to the following claims and motions:
Claims: 103390, 103763, 104262, 105851, 105938, 105958, 106195, 106216, 106217, 106486, 106802, 106926, 107038, 107177, 107203, 107357, 107358, 107510, and 107633
Motions: M-66205, M-66229, M-66230, M-66231, M-66232, M-66276, M-66285, M-66295, M-66296, M-66455, M-66456, M-66473

If claimant were represented by an attorney, a situation such as this would not arise, because the Court would have significantly more control over any motion practice related to disclosure. Subdivision (b) of Rule 206.8 of the Uniform Rules for the Court of Claims (22 NYCRR §206.8[b]) requires that no discovery motion can be brought unless the parties first confer with the assigned judge, but this requirement does not apply to prisoner pro se claims. It is not necessary, however, for there to be a specific rule or regulation placing limits on a litigant's ability to bring discovery motions. Trial courts have very broad discretion to control disclosure in the cases before them (CPLR 3104; see, e.g., Vasile v Chisena, 272 AD2d 610 [2d Dept 2000]). In exercising that discretion, they are to be governed by the criteria of "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; McMahon Aviette Agency, Inc., 301 AD2d 820 [3d Dept 2003]; Mitchell v Stuart, 293 AD2d 905 [3d Dept 2002]; see also CPLR 3104[a]).

CPLR 3103 authorizes a court to issue a protective order, either on motion by a party or on its own initiative. Such an order may deny, limit, condition or regulate the use of any disclosure device, so long as the terms are designed to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." The statute's non-exhaustive list of matters that a protective order can regulate include the time within which information must be obtained, the number and kinds of questions that can be asked, the disclosure devices or combination of devices that can be used, and the matters that may or may not be inquired into (Siegel, NY Practice, 3d ed, §353, p 550). Where discovery demands are so "unduly burdensome and prolix as to be oppressive, the appropriate remedy is not judicial pruning but vacation of the interrogatories in their entirety, since pruning is a function of counsel [or the pro se litigant], not the court" (44A NY Jur 2d Disclosure, §329).

The need for some sort of order or method of control in this situation is beyond dispute. To illustrate the situation with only one example, in Claim No. 103763 (to which Motion No. M-66205 relates), claimant served a demand captioned "Combined Demands for Discovery, Production of Documentation and [Interrogatories] and or Admissions of Fact." This demand consists of 96 items, many of them multi-part, and defendant declined to respond to this particular demand on the ground that they were, in reality, a deposition upon written questions (CPLR 3108). Each of claimant's 23 claims has given rise to extensive, and often confusing, disclosure demands.

One pervasive problem with these demands is that it is usually difficult to determine which discovery device claimant is attempting to use (see, Claim No. 105938, Motion No. M-65558, October 4, 2002, Hard, J.; UID #2002-032-027, Claim No.105938, Motion No. M-65995, February 4, 2003, Hard, J.). Despite the caption of the demand described above, it does not seek the production of specifically identified documents or other things for claimant to inspect or copy. Consequently, it is not a proper demand under CPLR 3120. Nor can it be considered a deposition upon written questions (CPLR 3108), because the parties must stipulate to the use of that device; questions must be directed to one person; and the propounding and answering of the questions must occur at a fixed time and place (see, Siegel, NY Practice, 3d ed, §359, p 560). Of the disclosure devices listed in CPLR 3102(a), the demand most nearly equates to either a request for admissions and/or as a set of interrogatories.[11]
Notice to Admit: The scope and function of a notice to admit (CPLR 3123) is limited by statute: the admissions may relate to the genuineness of any papers or documents, to the correctness or fairness of representation of any photographs, or to "the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry." The purpose of a notice to admit is to eliminate factual matters that will not be in dispute at trial, not to "obtain information in lieu of other disclosure devices" (Taylor v Blair, 116 AD2d 204, 206 [1st Dept 1986], quoting Nader v General Motors Corp., 51 Misc 2d 515 [Sup Ct, NY County, 1967], affd 29 AD2d 632 [1st Dept 1967]; see also, Wolin v St. Vincent's Hosp. and Medical Ctr of New York, __ AD2d __, 757 NYS2d 33 [1st Dept 2003]).
The sole function of such a notice is to expedite the trial by eliminating from contention that which is public knowledge or easily provable and which the party reasonably believes is not in dispute. * * * To permit the use of a notice to admit in lieu of other general disclosure devices, namely, interrogatories or a deposition on written questions, is inconsistent with established precedent.
(Taylor v Blair, supra, at 207-208.) A party's failure to admit or deny contested facts or facts that go to the heart of the controversy does not transform the questions into admissions (State v Trionix Research Laboratory Inc., 266 AD2d 687 [3d Dept 1999]). When a notice to admit is so voluminous as to be oppressive and contains only a few items that are proper subject for such a notice, it is "unwise and unnecessary" for the court to prune the requests so as to create a notice that is proper (Berg v Flower Fifth Ave. Hosp., 102 AD2d 760, 761 [1st Dept 1984]).

Interrogatories: Unlike notices to admit which relate to undisputed facts, interrogatories are to be used to obtain information that is material to the issues that are in dispute in the lawsuit (Berlin v Vassar Brothers Hosp., 123 Misc 2d 90, 96 [Sup Ct, Dutchess County, 1984]; Rush v Insogna, 119 AD2d 879 [3d Dept]). They are not intended to be "fishing expeditions," however, nor are they to be used to obtain information that is a matter of public record and thus is as accessible to one party as to the other (Suffolk Business Ctr v Applied Digital Data Systems, Inc., 128 AD2d 861, 862 [2d Dept 1987]).

The Legislature has traditionally placed limits on the use of interrogatories because of the potential for abuse and harassment they presented (6 Weinstein-Korn-Miller, NY Civ Prac, ¶3130.01). According to one commentator, these limitations reflected fears that "wealthy litigants with a battery of lawyers could bury their poorer adversaries in a blizzard of paper" (Siegel, NY Practice, 3d ed, §361, p 562).[12] Perhaps ironically, the concern here is that the device can be used oppressively by poorer litigants, who have an excess of time in which to create the "blizzard of paper" and who are by and large impervious to financial sanctions.

As with notices to admit, striking or vacating the entire demand, rather than pruning it, is the appropriate action for courts to take where interrogatories are unnecessarily voluminous or "patently burdensome, oppressive, and improper" (EIFS, Inc. v Morie Co., Inc., 298 AD2d 548, 549 [2d Dept 2002]; Aeron Aviation Corp. v Chemco Intl. Leasing, Inc., 117 AD2d 573 [2d Dept 1986]). It is also permissible, and in fact appropriate, to vacate an entire set of "palpably improper" interrogatories in response to a motion to compel, even when the party served did not move for a protective order (Alford v Progressive Equity Funding Corp., 144 AD2d 756, 757 [3d Dept 1988], quoting Handy v Geften Realty, 129 AD2d 556 [2d Dept 1987]).

It is the Court's opinion that a claimant who is willing and able to devote so much time and effort toward making repeated, extensive discovery demands and discovery motions would be far better served by learning the appropriate nature and limits of the various discovery devices. Notices to admit and interrogatories are two of the most useful and least expensive for a pro se litigant to employ, but they must be employed appropriately. As another judge of this Court has cautioned:
All judges of this Court have the power to limit a litigant's ability to commence claims in this court, where a litigant has turned his legitimate right to bring suit into an abusive tool used to harass and require the needless expenditure of resources on the part of the Attorney General and the Court (see Faison v State of New York, 176 Misc 2d 808; Lee v State of New York, Oct 4, 1990, Corbett, J., claim No. 79553, motion No. M-41426; 22 NYCRR, part 130). It does not appear that this power has, to date, been used to limit and control a litigant's right to make motions in connection with his or her claims, but there is nothing to prevent that from occurring.
(Moore v State of New York, UID #2001-028-0511, Claim No. 100767, Motion Nos. M-62452, M-62790, M-62814, January 16, 2001, Sise, J.). It is well established that limitations on the right to access the courts may be appropriate when it becomes clear that the courts are being used as a vehicle of harassment by a litigant, even if the litigant is appearing pro se (see, 67A NY Jur 2d, Injunction §125, Avoidance of Vexatious or Oppressive Litigation and cases cited therein). Limiting vexatious or oppressive discovery is far less of an intrusion on a citizen's right to access the courts, but it can play an equally important role in conserving both litigant and judicial resources and in the orderly process of the Court.

With those cautions and observations in mind, the Court responds to the motion for a protective order in the following ways:

1) All of claimant's motions to compel discovery or for sanctions are denied.

2) All of claimant's currently outstanding discovery demands in the claims listed above are stricken. (If there are some demands that are proper and appropriately framed, defense counsel may and is encouraged to voluntarily respond to them and provide the requested documentation or information.)

3) With respect to the claims listed above, any and all future discovery demands will be subject to the following limitations:

a) Each demand shall be properly identified as one of the devices listed in CPLR 3102. Counsel for defendant may reject an improperly captioned demand on that ground alone.

b) Any demand that is either a notice to admit or a set of interrogatories shall consist of no more than 10 items, and none of those demands shall have more than two subparts.

c) Once a notice to admit or set of interrogatories has been served in a given claim, there will be no further use of either device in that claim until claimant has either accepted defendant's responses or raised and resolved any disputes regarding the response.

d) When claimant objects to the response provided by defendant, he shall attempt at least one informal effort at resolving the dispute, by way of a letter to defense counsel. If this does not result in agreement between the parties, a motion may then be filed.

e) Once all matters have been resolved with respect to one 10 item demand, claimant may, if he chooses, serve another demand also limited to 10 items.

Inevitably, the last three limitations may require that claimant make multiple demands in some of the claims and may extend the period of discovery over time. On the other hand, some restraint has to be imposed, and limiting the extent of demands that are outstanding at any one time and providing for claimant to receive feedback as to the form and content of the demands seems to be a reasonable way to accomplish this.
Claimant's Motions for Summary Judgment
In connection with Claim No. 106195, claimant has brought two motions for summary judgment, Motions No. M-66286 and M-66457, which are addressed to one of the several causes of action set out in that claim. With respect to Motion No. M-66286, the Chief Clerk sent a notice of the corrected return date to the Office of the Attorney General, and defense counsel responded by letter indicating that his office had not received the motion papers. It is not clear whether the Attorney General was served in Motion No. M-66457. In any event, however, the virtually identical motions seek only partial summary judgment based on alleged concessions of fault made in response to claimant's discovery demands. Copies of those responses were not attached to the motion papers, however, and it would be inappropriate for the Court to grant judgment on a cause of action without some sort of documentary evidence. Furthermore, the savings to claimant would be minimal, since the balance of the claim and the amount of any damages would have to be litigated at trial. For these reasons, these motions are denied.

Defendant's motions to dismiss

In two claims, counsel for defendant has moved for orders of dismissal. Claim No. 107510 was filed on March 21, 2003. In lieu of answering, defendant has moved (Motion No. M-66672) to dismiss the claim on the ground that it is jurisdictionally defective in that it fails to include the total sum claimed, as required by Court of Claims Act §11(b). In response, claimant has cross moved (Cross Motion No. CM-66698) to add the following monetary demands:

1st cause of action ("Claim 1"): $100,000.00, plus interest

2nd cause of action: $200,000.00, plus interest

3rd cause of action: $500,000.00, plus interest

In the past, it appeared to be well settled that "[s]ubstantial compliance with the statute is all that is required" (Barski v State of New York, 43 AD2d 767, 768 [3d Dept 1973]), and thus that largely technical omissions in the content of a claim would not constitute a fatal jurisdictional defect. "All elements of the claim need not be set out with formalistic rigidity, but it must convey notice to the State to enable it to properly investigate, defend, and/or settle the claim" (Harper v State of New York, 34 AD2d 865 [3d Dept 1970]; see also Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]). Recently, however, the Third Department has stated that
[t]he Court of Claims Act provides, in pertinent part, that a claim shall state "the time when and place where such claim arose, the nature of same, * * * the items of damage * * * claimed to have been sustained and the total sum claimed" (Court of Claims Act § 11[b] ). These requirements are jurisdictional and must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722).
(Lepkowski v State of New York, 302 AD2d 765, 766 [3d Dept 2003].) In Lepkowski, several related claims were dismissed because, in part, "they completely fail to provide the times when and the places where such claims arose, any items of damage or the total sum claimed" (id, at 766). The Court also held the verification of those claims to be deficient. This approach is in keeping with recent case law holding that lack of section 11(b)'s requirement of verification is also a jurisdictional defect (Graham v Goord, 301 AD2d 882 [3d Dept 2003]; Martin v State of New York,185 Misc 2d 799, 801-804 [Ct Cl 2000]; Price v State of New York, UID #2003-032-048, Claim No. 105265, Motion No. M-65981 et al., May 15, 2003, Hard, J.) and, further, that such a jurisdictional defect cannot be remedied by amendment of the original claim (Martin, supra, at 804). Consequently, pursuant to the Third Department's reasoning in Lepkowski (supra), Claim No. 107510 is jurisdictionally defective, and claimant's cross motion to amend that claim to cure the defect must be denied and the claim is dismissed.

Counsel for defendant has also moved for dismissal of Claim No. 107177 on the ground that it is not properly verified (Motion No. M-66401). As noted above, the Third Department has recently adopted the view that verification[13] of a claim or notice of intention, required by section 11(b) of the Court of Claims Act, is a jurisdictional requirement that must be strictly construed (Graham v Goord, 301 AD2d 882, supra). Graham and the decision addressing verification on which it relied, Martin v State of New York (185 Misc 2d 799, supra) both dealt with a situation in which verification was altogether absent.

In this claim, however, there is a proper verification statement which is signed by the claimant[14] but the jurat[15] is blank. In other words, the verification is not notarized. This situation, therefore, is identical to the one presented in Jacobs v State of New York (193 Misc 2d 413 [Ct Cl 2002]). In that case, the judge who had held verification to be jurisdictional in Martin (supra), held that a prisoner's failure to have his verification statement notarized constituted a "defective verification," rather than an absolute failure to comply with section 11(b) (id, at 415, quoting Abdullah v State of New York, Ct Cl, Dec. 7, 2001, Bell, J. [Claim No. 104525, Motion No. M-64269] UID #2001-007-141 ["the court is not convinced that the inexact verification rises to the level of a jurisdictional defect"]). In this instance, as in Jacobs (supra) and Abdullah (supra), the verification is not missing but is defective in that it was not signed before a notary public. This Court is unable to make the fine distinction between a verification that is altogether missing and one that is "defective" (i.e., that is only partially missing). As explained in Price v State of New York (UID #2003-032-048, Claim No. 105265, Motion No. M-65981 et al., May 15, 2003, Hard, J., supra), there is reason to question whether the Legislature intended the verification requirement of Court of Claims Act §11(b) to be applied in a manner different than similar requirements as applied in Supreme Court, where practice is governed by the CPLR. This is particularly true when section 11(b) requires that claims and notices of intention "shall be verified in the same manner as a complaint in an action in the supreme court." It appears, however, that the Third Department, in Lepkowski v State of New York (supra) and Graham v Goord (supra), has taken the position that the requirement does have a jurisdictional, preclusive effect in Court of Claims practice. Nevertheless, the phrase "in the same manner as a complaint in an action in the supreme court" must have some meaning. Pursuant to CPLR 3022, a defective verification has no different effect than a missing verification: "A defectively verified pleading shall be treated as an unverified pleading." And the remedy for both defective and missing verification is the same: the pleading may be treated as a nullity as long as the party served acts with due diligence to advise the adverse party of that fact. Accordingly, because Claim No. 107177 was defectively verified, and because the requirement of verification is jurisdictional in Court of Claims practice, defendant's motion to dismiss is granted.

To summarize the various holdings set forth above:

1. Defendant's Motion No. M-66233 for consolidation is granted to the extent that Claims No. 103390, 104262, 105938, 105958, 106216, 106217, 106486, and 106802 are consolidated. The newly consolidated claim shall be designated as Claim No. 103390; the pleadings previously served by both parties shall be, in combination, the pleadings in Claim No. 103390.

2. Defendant's Motion No. M-66233 insofar as it seeks to consolidate Claims No. 106195 and 106235 with the other claims listed above is denied;

3. Defendant's Motion No. M-66233 insofar as it seeks a protective order is granted to the following extent: with respect to Claims No.103390, 103763, 104262, 105851, 105938, 105958, 106195, 106216, 106217, 106486, 106802, 106926, 107038, 107177, 107203, 107357, 107358, 107510, and 107633:

a) all outstanding discovery demands served by claimant are hereby stricken, although defendant may choose to voluntarily comply with those that may be proper, and

b) any future discovery demands served by claimant in the above noted claims shall be subject to the limitations in format and length set forth above;

c) claimant's motions to compel discovery and/or for sanctions Motions No. M-66230, M-66231, M-66232, M-66276, M-66285, M-66296, M-66455, M-66456, M-66473, M-66205, M-66229, and M-66295 are stricken;

4. Claimant's motions for summary judgment Motions No. M-66286 and M-66457 are denied;

5. Defendant's Motion No. M-66672 to dismiss Claim No. 107510 is granted; claimant's cross motion to amend that claim, CM-66698, is denied; and Claim No. 107510 is dismissed;

6. Defendant's Motion No. M-66401 to dismiss Claim No. 107177 is granted, and Claim No. 107177 is dismissed.


June 30, 2003
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on the following motions and cross-motions:
1. a) Notice of Motion No. M-66205 to compel discovery in Claim No. 103763 and Supporting Affidavit of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66205 of Joseph F. Romani, Esq., AAG

c) Reply letter of Reginald McFadden, pro se

2. a) Notice of Motion No. M-66229 to compel discovery and for sanctions in Claim No. 103390 and Supporting Affidavit of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66229 of Glenn C. King, Esq., AAG

c) Claimant's Reply Affidavit of Reginald McFadden, pro se

3. a) Notice of Motion No. M-66230 to compel discovery and for sanctions in Claim No. 105958 and Supporting Affidavit of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66230 of Glenn C. King, Esq., AAG

c) Claimant's Reply Letter of Reginald McFadden, pro se

4. a) Notice of Motion No. M-66231 to compel discovery and for sanctions in Claim No. 106217 and Supporting Affidavit of Reginald McFadden, pro se

b) Letter relating to Motion No. M-66231 of Glenn C. King, Esq., AAG

5. a) Notice of Motion No. M-66232 to compel discovery and for sanctions in Claim No. 106486 and Supporting Affidavit of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66232 of Glenn C. King, Esq., AAG

c) Reply Affidavit of Reginald McFadden, pro se

6. a) Notice of Motion No. M-66233 for consolidation and a protective order and Supporting Affidavit of Glenn C. King, Esq., AAG, with annexed Exhibits ("King affirmation I")

b) Affidavit in Opposition to Motion No. M-66233 of Reginald McFadden, pro se (McFadden affidavit I")

c) Letter Reply of Reginald McFadden, pro se

7. a) Notice of Motion No. M-66276 to compel discovery and for sanctions in Claim No. 106216 and Supporting Affidavit of Reginald McFadden, pro se

b) Letter relating to Motion No. M-66276 of Glenn C. King, Esq., AAG

8. a) Notice of Motion No. M-66285 to compel discovery and for sanctions in Claim No. 106195 and Supporting Affidavit of Reginald McFadden, pro se

b) Letter relating to Motion No. M-66285 of Glenn C. King, Esq., AAG

c) Letter Reply of Reginald McFadden, pro se

9. a) Notice of Motion No. M-66286 for summary judgment in Claim No. 106195 and Affidavit in Support of Reginald McFadden, pro se

b) Letter relating to Motion No. M-66286 of Glenn C. King, Esq., AAG

c) Letter Reply of Reginald McFadden, pro se

10. a) Notice of Motion No. M-66295 to compel discovery and for sanctions in Claim No. 105851 and Supporting Affidavit of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66295 of Mary B. Kavaney, Esq., AAG

c) Reply Affidavit of Reginald McFadden, pro se

11. a) Notice of Motion No. M-66296 to compel discovery and for sanctions in Claim No. 105938 and Supporting Affidavit of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66296 of Glenn C. King, Esq., AAG

c) Reply Affidavit of Reginald McFadden, pro se

12. a) Notice of Motion No. M-66401 to dismiss Claim No. 107177 and Supporting Affirmation of Glenn C. King, Esq., AAG

b) Letter in Opposition of Reginald McFadden, pro se

13. a) Notice of Motion No. M-66455 to compel discovery in Claim No. 107038 and Supporting Affidavit of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66455 – none received

14. a) Notice of Motion No. M-66456 to compel discovery and sanctions in Claim No. 106926 and Supporting Affidavit of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66456 – none received

15. a) Notice of Motion No. M-66457 for summary judgment in Claim No. 106195 and Affidavit in Support of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66457 – none received

16. a) Notice of Motion No. M-66473 to compel discovery and for sanctions in Claim No. 106217 and Supporting Affidavit of Reginald McFadden, pro se

b) Affirmation in Opposition to Motion No. M-66473 – none received

17. a) Notice of Motion No. M-66672 to dismiss Claim No. 107510 and Supporting Affirmation of Glenn C. King, Esq., AAG

b) Notice of Cross-Motion No. CM- 66698 to amend Claim No. 107510 and Supporting Affidavit of Reginald McFadden, pro se



[1] Claims No. 95870, 102127, 103390, 103763 and 104262.
[2] Claims No. 105851, 105938, 105958, 106195, 106216, 106217, 106235, 106486, 106802, 106881, 106926, and 107038.
[3] Claims No. 107177, 107203, 107357, 107358,107510, and 107633.
[4] Motions No. M-55366, M-61599, M-63758, all of which have been decided.
[5] Motions No. M-65227, M-65995 and M-66040, all of which have been decided, and Motion No. M-66205.
[6] Motions No. M-66229, M-66230, M-66231, M-66232, M-66276, M-66277 (decided), M-66285, M-66286, M-66295, M-66296, M-66339 (decided), M-66455, M-66456, M-66457, M-66473, and CM-66698.
[7] Motions No. M-65558 (decided), M-65783 (decided), M-66233, M-66401, and M-66672.
[8] In the body of the claim, claimant states that this claim covers the same matters as those on which Claims No. 95870, 102127, 104767, and 103390 are based. He is refiling, he states, because those original claims were not verified. Claim No. 104767 was brought by another individual. Two of the claims, Claims No. 95870 and 102127, are listed as having arisen at Sullivan Correctional Facility, to which another judge of this Court is presently assigned, and any motion practice relating to that claim must be directed to that judge. Claim No. 103390 is part of the motion to consolidate under consideration here.
[9] It can be anticipated that defendant will move to dismiss any cause of action that is duplicated in Claim No. 104262.
[10] It appears that claimant has asked for sanctions whenever there has been a delay in responding to his discovery demands or whenever the responses do not satisfy him. In light of claimant's numerous, often overlapping claims; his numerous, often overlapping discovery demands; and his numerous, often overlapping motions, it is the Court's view that sanctions could far more appropriately be imposed on claimant, rather than defendant.
[11] It should be noted that neither of these discovery devices could be used against the State of New York until 1994, when CPLR 3102(f) was amended to permit them (L 1993, ch 98, § 4). This step was taken in response to Vista Business Equipment, Inc. v State of New York (NYLJ, Jan. 23, 1986, p 12, col 3 [Ct Cl Weisberg, J.]), which reviewed the history of claimants' ability to conduct discovery against the State. Such discovery must be authorized by statute, because the State's waiver of sovereign immunity did not result in a corresponding waiver of immunity from disclosure. These two devices were kept unavailable even after the CPLR was amended to allow all other devices to be used against the State.
[12] Originally, interrogatories could not be used in personal injury, property damage or wrongful death claims arising from negligence. At the present time, the statute precludes use of both interrogatories and depositions in those same actions, without leave of court, and the use of both interrogatories and bills of particulars, except in matrimonial actions (CPLR 3130[1]). In addition, as noted elsewhere (see, footnote 14), it was not until recently that interrogatories could be used in an action against the State.
[13] "A verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he believes it to be true" (CPLR 3020[a]).
[14] Below the verification's statement that the pleading is true to the knowledge of the deponent, claimant has written "I certify that the above is true and correct under penalty of perjury 12/23/02." It appears that claimant was attempting to comply with Federal law (28 USC §1746) which permits substitution of an unsworn statement made under penalty of perjury for a "sworn declaration, verification, certificate, statement, oath, or affidavit." There is no comparable provision in New York law.
[15] A jurat is "[a] certification added to an affidavit or deposition stating when and before what authority the affidavit or deposition was made" (Black's Law Dictionary, 7th ed).