New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2005-032-011, Claim No. 109497, Motion No. M-69203


A motion to strike scandalous and prejudicial matter (CPLR 3024[b]) is properly directed only at a pleading, not at a party's response to discovery demands.

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:
Jose Rivera, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 18, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has moved for an order striking portions of defendant's Response to Claimant's Demand for Discovery and/or Inspection, as scandalous, prejudicial and unnecessarily inserted into this action. His chief complaint appears to be that some of the documents provided in response to his discovery demand (Arnold affirmation, Exhibits A and B) relate to other claims or incidents unrelated to this action, a bailment claim that accrued in February 2004. He also objects to some of the statements contained in the documents provided, such as statements about claimant's honesty that are contained in a April 5, 2004 memorandum from a sergeant at Clinton Correctional Facility to one of his superiors (Rivera affidavit, ¶10; Arnold affirmation, Exhibit B, p 3).

There are several problems with claimant's motion. The most decisive is that a motion to strike scandalous and prejudicial material is available only when such material is contained in a pleading (CPLR 3024[b]; see also CPLR 3126[3][a Court may strike a pleading, among other possible penalties, when a party fails to participate in disclosure]). In addition, there is no provision for a court to "strike" a portion of a document that was created by another, at a different time. Redaction is possible, if there is a need, but that does not appear to be the case here. Claimant's concern may be due to his apparent belief that any document produced in response to his discovery demands is "reviewed [received] as evidence" (Rivera affidavit, ¶8). This is not the case. To be received as evidence a document has to be produced at trial, and the opposing party can object to its introduction, in whole or in part, into the record. As defense counsel states, with respect to any of the documents produced in response to his discovery demand "claimant can elect to use it or not, at his discretion" (Arnold affirmation, ¶6).

The same reasoning applies with respect to any documents of information provided by defense counsel that may not be relevant to this action. When a litigant commences as many claims as claimant does, it is to be expected that the party responding to all of these will be placed in some confusion. It is better that defense counsel included additional material rather than too little.

Claimant's motion is denied.

February 18, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion to strike scandalous and prejudicial material:

1. Notice of Motion and Supporting Affidavit of Jose Rivera, pro se;

2. Affirmation in Opposition of Kathleen M. Arnold, Esq., AAG;

Filed papers: Claim; Answer