Claimant, an inmate appearing pro se, moves for an order striking scandalous
and prejudicial matter pursuant to CPLR 3024 contained in the defendant's
discovery responses. The State of New York (hereinafter "State") opposes the
This claim alleges that claimant suffered corns on his feet due to the State's
failure to provide him with proper sneakers. The claim is pled as negligence
and/or medical indifference with respect thereto. Claimant served upon the
State a "First Set of Interrogatories and First Request For Admissions" on or
about February 16, 2005. Said discovery demand contained three interrogatories
and 15 requests for admissions. The State's response contained affirmative
admissions to 10 out of the 15 requests. With respect to request #s 4, 5, 6,
& 7, the State responded "can not be verified", and in response to #15
neither admitted nor denied the same but provided an explanation of when sick
call was available. Now, claimant makes this hybrid motion citing both CPLR
3024, as well as the State's failure to comply with the time requirements of
CPLR 3123 seeking to strike the so-called scandalous and prejudicial matter,
namely the State's failure to admit for demands #s 4, 5, 6, 7, & 15.
With respect to CPLR 3024, it is well-settled that a motion to strike
scandalous and prejudicial material is available only when such material is
contained in a pleading, not discovery responses such as here. (CPLR 3024 [b]).
In fact, a similar motion by this same litigant was previously denied by my
learned colleague the Hon. Judith A. Hard for the same reason. (Rivera v
State of New York
, Ct Cl, February 18, 2005, Claim No. 109497, Motion No.
M-69203 [UID No. 2005-032-011]).
Moreover, to the extent that claimant's motion may be construed as a motion
seeking to have all his requests for admissions deemed admitted due to the
State's failure to comply with the time requirements set forth in CPLR 3123, the
motion will be denied as well. 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 a full trial
[citation omitted]." (Meadowbrook-Richman, Inc. v Cicchiello, 273 AD2d
6). CPLR 3123 also provides that the party receiving said demand to admit
should respond within 20 days.
With respect to the matters not admitted by the State, the court can not compel
the State to admit a fact it disputes or cannot verify. In any event, claimant
argues that those matters set forth in the notice which the State denied or
could not verify should now be deemed admitted due to the State's untimely
response. Although the State did not respond to claimant's notice to admit in a
timely fashion, as required by statute, the court notes that this matter is not
yet scheduled for trial and is one of 8 claims pending by this pro se litigant.
In view of the foregoing the court finds that the State's untimely response did
not result in any prejudice to claimant and, as such, the court will allow the
State's late response to be deemed timely. (Clark v Prudential Ins. Co. of
America, 18 AD2d 1090). Consequently, claimant's motion for an order
striking scandalous and prejudicial matter pursuant to CPLR 3024 contained in
the defendant's discovery responses will be denied.
Accordingly, claimant's motion, Motion No. M-70325, is DENIED.
Claim, filed January 3, 2005.
Verified Answer, filed January 21, 2005.
Claimant's First Demand for Discovery and/or Inspection, filed February 25,
Claimant's First set of Interrogatories and First Request for Admissions, filed
February 25, 2005.
Defendant's Response to First Demand for Discovery and/or Inspection, filed May
Defendant's Response to First Set of Interrogatories and First Request for
Admissions, filed May 31, 2005.
Notice of Motion No. M-70325, dated June 8, 2005, and filed June 23,
Affidavit of Jose Rivera, in support of motion, sworn to June 13, 2005, with
Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated July 1,
2005, and filed July 5, 2005.