New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2004-019-500, Claim No. 106467-A, Motion No. M-67728


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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 2, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for a protective order pursuant to CPLR 3103.[1] Claimant, an inmate appearing pro se, opposes the motion.

This is a bailment claim involving ten missing law books from claimant's cell at Southport Correctional Facility that occurred on or about January 28, 2002. There are two facets to the State's request for a protective order, namely: (1) limiting all future discovery requests in relation to this claim; and (2) denying claimant's request for a notice to admit.

  1. Future Disclosure
According to this court's file, claimant served a Demand for Discovery and Inspection dated November 18, 2002 and filed November 22, 2002. The State served responses dated April 9, 2003 and May 5, 2003. In relation to the foregoing responses, claimant filed a motion to compel in which the court directed the State to provide specific and clear responses within 30 days of the entry of the Decision & Order. (Rivera v State of New York, Ct Cl, May 30, 2003, Lebous, J., Claim No. 106467-A, Motion No. M-66605 [UID No. 2003-019-545]).[2] The State served a supplemental response dated June 27, 2003 and filed June 30, 2003. Claimant was dissatisfied with the State's response and filed a second motion to compel. With respect to the second motion, this court rejected claimant's objections to the State's latest responses. (Rivera v State of New York, Ct Cl, August 25, 2003, Lebous, J., Claim No. 106467-A, Motion No. M-67207 [UID No. 2003-019-558]).

CPLR 3103 allows the court to limit discovery in order "[t]o prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." In and of themselves, this court finds that claimant's discovery practice to date does not rise to the level warranting a protective order limiting all future disclosure under CPLR 3103. As such, the State's request for a protective order limiting all future disclosure will be denied.

2. Notice to Admit

The State also seeks a protective order from claimant's Notice to Admit dated November 4, 2003. CPLR 3123 allows a party to request another party to admit the "[t]ruth of any matters of fact . . . as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial...." However, it is well settled that "[a] notice to 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 full trial [citation omitted]." (Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d 6).

Here, the Notice to Admit is five single-spaced handwritten pages containing 43 paragraphs. (State's Exhibit A). The court has reviewed the Notice to Admit and finds that although some of the requests for admissions are proper, the remaining requests go well beyond the type of inquiry for which this disclosure device was intended by seeking admissions regarding contested facts relating to the essence of the dispute between the parties. (Servidori v Mahoney, 129 AD2d 944). It is not the obligation of the court to prune a notice to admit which contains both proper and improper requests. Rather the proper remedy in such situations, as here, is that the notice to admit should be stricken in its entirety. (Berg v Flower Fifth Ave. Hosp., 102 AD2d 760, 761; Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453, 453-454). Consequently, the State's motion for a protective order is granted to the extent that the State will not be compelled to respond to claimant's Notice to Admit dated November 4, 2003.

Accordingly, the State's motion, Motion No. M-67728, is GRANTED IN PART and DENIED IN PART, in accordance with the terms hereof.

January 2, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., Claim No. 106467-A, Motion No. M-66605, dated May 30, 2003, and filed June 11, 2003.
  2. DECISION AND ORDER, Lebous, J., Claim No. 106467-A, Motion No. M-67207, dated August 25, 2003, and filed September 15, 2003.
  3. Notice of Motion No. M-67728, dated November 26, 2003, and filed December 1, 2003.
  4. Affirmation of James E. Shoemaker, AAG, in support of motion, dated November 26, 2003, with attached exhibit.
  5. Affidavit of Jose Rivera, in opposition to motion, sworn to December 2, 2003, and filed December 8, 2003.

[1]The State's request is one for a protective order, not dismissal, as listed in the Notice of Motion.
[2]Unreported decisions from the Court of Claims are available via the Internet at