New York State Court of Claims

New York State Court of Claims

McCAIN v. THE STATE OF NEW YORK, #2005-030-531, Claim No. 110056, Motion No. M-69976


Case Information

ADRIAN McCAIN The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
June 2, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read and considered on Claimant's "Motion

for the Right to present further evidence to the court under C.P.L.R. 4401":

  1. Motion for the Right to present further evidence to the Court under C.P.L.R..4401 by Adrian McCain, Claimant and attached exhibits
  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General, and attached exhibit
3,4 Filed Papers: Claim, Answer

After carefully considering the papers submitted and the applicable law, the motion is disposed of as follows:

Adrian McCain alleges in Claim Number 110056 that on July 17, 2003 he was standing in the recreation area of Sing Sing Correctional Facility (hereafter Sing Sing) near ongoing construction on the B-Block roof, when a "small concrete rock came down from the roof and hit Claimant on the right side of the head, thus causing injury." [Claim Number 110056, ¶ 2]. He asserts that Defendant's agents negligently failed to protect the inmate Claimant from foreseeable injury by failing to mark off the construction site or otherwise warn of the dangerous condition. [ibid.]. In addition to general denials, the Answer, filed on December 13, 2004, contains ten affirmative defenses.

It is unclear what the present motion is seeking. Civil Practice Law and Rules §4401 is generally cited as authority for making a motion for judgment during the trial - commonly called a motion for a directed verdict - at the close of an opposing party's presentation of evidence. Indeed, the rule is part of Article 44 of the Civil Practice Law and Rules addressing motions to be made during the course of a trial. The statute provides that
"Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. Grounds for the motion shall be specified . . . " Civil Practice Law and Rules §4401.
Claimant appears to have seized upon the portion of the statute wherein a motion for judgment based upon admissions may be made ". . . at any time . . . " [id.], to ask that the Court admit "evidence" at this time, in the form of admissions by correction personnel contained in correspondence or memoranda concerning his accident. [See Motion for the Right to present further evidence by Adrian McCain, ¶¶ 2,3,5,6]. Claimant has appended two handwritten memoranda- apparently written in his own hand - that are ostensibly copies of memoranda he received from Superintendent Brian Fischer and First Deputy Superintendent Paul Kendall. [ibid. Exhibits A and B]. One of the additional papers appended to the motion indicates that Claimant has been trying to get photocopies of the original memoranda through a Freedom of Information Law (FOIL) request to no avail, and that is why the copies of the memoranda made by hand are attached. [See "Special Data Notice" from Adrian McCain to Presiding Judge Sise].

As pointed out by the Assistant Attorney General, however, the trial has not commenced, and whatever statements are contained in the original memoranda appear to be in response to queries made by Claimant, of perhaps marginal relevance to any issues Claimant bears the burden of proving at trial. What Claimant may be seeking, however, is more in the nature of a Notice to Admit pursuant to Civil Practice Law and Rules §3123.

Civil Practice Law and Rules §3123 provides in pertinent part that a party may serve upon its opponent
". . . a written request for admission by the latter of 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 . . . Each of the matters of which an admission is requested shall be deemed admitted unless . . . the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters."

The purpose of this discovery device is to eliminate from litigation factual matters that will not be in dispute at trial, that are within the knowledge of the party from whom the information is sought or readily ascertainable by that party. See generally Vasquez v Vengroff, 295 AD2d 421 (2d Dept 2002); Taylor v Blair, 116 AD2d 204 (1st Dept 1986). Requests to admit should not be addressed to ultimate issues in the case in controversy, and should not seek legal conclusions, such as, for example that an entry onto property was trespass [See e.g. Gomez v Long Island Railroad, 201 AD2d 455, 456 (2d Dept 1994)], or a party's interpretation of the law. Villa v New York City Housing Authority, 107 AD2d 619, 620 (1st Dept 1985).

Assuming the requests are proper, then, the party to whom they are addressed must deny them, or explain why they cannot respond in a sworn statement, or else the matters are deemed admitted.

In terms of any sanction associated with an alleged failure to respond adequately to a Notice to Admit, the rules provide that upon a failure to admit the requested information, and subsequent proof of the fact in issue, the party seeking the admission may move for an order requiring payment of any expenses associated with establishing the fact in issue. See §3123(c) Civil Practice Law and Rules. There is no provision that a party move to have a matter "deemed admitted," and, as noted above, during the trial admissions may serve as the basis of a motion for judgment as a matter of law pursuant to Civil Practice Law and Rules §4401.

In any event, statements that are merely "evidentiary" versus conclusive would not constitute admissions, and would thus not form the basis for such relief. See e.g. Town of Islip v Daly, 277 App Div 799 (2d Dept 1950); Wilson v Gotham Instrument Co., Inc., 198 Misc 1009 (Sup Ct, Queens Co 1950).

Finally, Claimant also asks for jury trial. Only non-jury trials are mandated in the Court of Claims. Court of Claims Act §12(3).

Accordingly, Claimant's motion number M-69976 is in all respects denied.

June 2, 2005
White Plains, New York
Judge of the Court of Claims