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 a correction officer intentionally filed a false
misbehavior report. Claimant served upon the State a "First Set of
Interrogatories and First Request For Admissions" on or about November 24, 2004.
Said discovery demand contained three interrogatories and 24 requests for
admissions. The State's response dated June 6, 2005 contained affirmative
admissions to 23 out of the 24 requests, but denied request
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 denial of one of claimant's requests for
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 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.
Obviously, the parties here disagree on whether claimant was deprived of
exercise as part of his punishment and, as such, the State was not compelled to
admit a fact it disputes. In any event, claimant therefore argues that the one
demand set forth in the notice which the State denied 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-70324, is DENIED.
Claim, filed October 20, 2004.
Verified Answer, filed November 15, 2004.
Claimant's First Set of Interrogatories and First Request for Admissions, filed
November 29, 2004.
Claimant's First Demand for Discovery and/or Inspection, filed November 29,
Defendant's Response to First Set of Interrogatories and First Request for
Admissions, filed June 8, 2005.
Defendant's Reply to First Demand for Discovery and/or Inspection, filed June
Notice of Motion No. M-70324, dated June 9, 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.