The State of New York (hereinafter "State") moves for a protective order
pursuant to CPLR 3103.
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.
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.
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.
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
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 admit...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 full trial
[citation omitted]." (Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d
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.
DECISION AND ORDER, Lebous, J., Claim No. 106467-A, Motion No. M-66605, dated
May 30, 2003, and filed June 11, 2003.
DECISION AND ORDER, Lebous, J., Claim No. 106467-A, Motion No. M-67207, dated
August 25, 2003, and filed September 15, 2003.
Notice of Motion No. M-67728, dated November 26, 2003, and filed December 1,
Affirmation of James E. Shoemaker, AAG, in support of motion, dated November
26, 2003, with attached exhibit.
Affidavit of Jose Rivera, in opposition to motion, sworn to December 2, 2003,
and filed December 8, 2003.