New York State Court of Claims

New York State Court of Claims

JEFFERSON v. THE STATE OF NEW YORK, #2006-032-061, Claim No. 109632, Motion Nos. M-70990, M-70999, M-71101, M-71102, M-71371


Synopsis



Case Information

UID:
2006-032-061
Claimant(s):
DONNELL JEFFERSON
Claimant short name:
JEFFERSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109632
Motion number(s):
M-70990, M-70999, M-71101, M-71102, M-71371
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Donnell Jefferson, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kevan J. Acton, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 10, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves this Court by three separate motions seeking an order striking defendant's responses to claimant's notice to admit (M-70990), compelling defendant to respond to claimant's interrogatories (M-71102) and granting sanctions (M-71371). In opposing all relief, defendant moves by separate motion to strike five notices to admit served by claimant (M-70999) and, subsequently, moved to dismiss for failure to timely serve a notice of intention or a claim (M-71101).

In March 2004, claimant served a notice of intention alleging that while he was incarcerated at Altona Correctional Facility [hereinafter Altona] from March 2001 through January 2002, another inmate gained access to certain personal information in claimant's institutional file. The notice of intention further alleged that in February 2004, two agents from the Internal Revenue Service [hereinafter IRS] informed him that fraudulent tax returns had been filed in his name. In July 2004, claimant filed a claim alleging that the inmate, Louis Early, gained access to his information while at Altona and filed false tax returns.

Defendant now moves to dismiss the claim alleging that claimant failed to serve either a notice of intention or a claim within 90 days of the accrual of the claim. The Court does not agree. Court of Claims Act § 10 requires that a claimant in a negligence action file and serve a claim upon the Attorney General within 90 days of the accrual of a claim, unless a notice of intention to file a claim is served upon the Attorney General within such time. It is well settled that a claim accrues for purposes of the Court of Claims Act when the damages are reasonably ascertainable (see Inter-Power of New York, Inc. v State of New York, 230 AD2d 405, 408 [3d Dept 1997]; Flushing Nat. Bank v State of New York, 210 AD2d 294 [2d Dept 1994]). Based on the submissions, claimant's damages were not readily ascertainable until he was contacted by the IRS and apprised of the alleged fraudulent tax returns. Thus, the Court determines that the claim did not accrue until February 2004. Inasmuch as claimant served his notice of intention in March 2004, and followed this service by filing and serving a claim in July 2004, the claim comports with Court of Claims Act § 10. As such, defendant's motion M-71101 is denied.

Turning to the remaining motions, the Court determines that there is no basis for granting sanctions and, thus, denies claimant's motion M-71371. Subpart 130-1 of 22 NYCRR authorizes the Court, in its discretion, to impose financial sanctions or costs upon a party or his or her attorney for engaging in frivolous conduct, which is defined, in part, as conduct that is “undertaken primarily * * * to harass or maliciously injure another” (22 NYCRR 130-1.1[c][2] ). Claimant argues, inter alia, that during the course of this litigation, defendant submitted papers to the Court ex parte. Inasmuch as the Court ordered an in camera review of the submitted documents, defendant’s actions were entirely proper. Further, after a review of the case history, the Court finds no conduct by defendant that warrants sanctions.

The Court next addresses the parties' motions with respect to claimant's notice to admit filed August 23, 2005 and notices to admit filed November 15, 2005 (M-70990, M-70999). Claimant argues that defendant's responses to the notice to admit filed August 23, 2005, were untimely and, furthermore, responses provided by defendant's attorney are improper. Additionally, claimant argues that defendant's counsel forwarded the responses to the wrong correctional institution in an attempt to subvert claimant's prosecution of claim.

Initially, the Court perceives no prejudice to claimant by defendant’s service of the responses to claimant at the wrong facility. Claimant received the responses and, indeed, has moved for affirmative relief regarding the responses. Moreover, given that defendant's attorney provided a sworn response to claimant's notice to admit filed August 23, 2005, the Court is unpersuaded by claimant's contention that responses by defendant's counsel were unacceptable.

Next, pursuant to CPLR 3123, a notice to admit may be used when 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". "The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial * * *. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper * * * " (Rosenfeld v Vorsanger, 5 AD3d 462 [2d Dept 2004] [citations omitted]). Further, "the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial" (DeSilva v Rosenberg, 236 AD2d 508, 509 [2d Dept 1997]).

Here, it is noted that the Court previously struck 12 notices that were pervaded by inappropriate questions that either went to the heart of the controversy or were improper attempts at discovery. The Court cautioned claimant that in the event that claimant serves revised notices, he was to confine his inquiries to areas which are appropriate for this device. The Court has reviewed claimant's notice to admit filed August 23, 2005 and defendant's responses, and claimant’s notices to admit filed November 15, 2005.[1] Although defendant's responses to claimant’s notice to admit filed August 23, 2005 were untimely, the Court finds not only that all of claimant's notices were, again, pervaded by improper attempts at discovery, but that defendant's responses to the notice to admit filed August 23, 2005 were entirely proper. Thus, the Court denies claimant’s request to strike defendant’s responses (M-70990).

The Court next considers defendant’s motion to strike the notices to admit filed November 15, 2005. Although some of claimant’s requests for admissions are proper, the remaining requests go well beyond the type of inquiry for which this disclosure device was intended (see 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 situations, such 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). Thus, defendant’s motion (M-70999) striking claimant‛s notices to admit filed November 15, 2005 is granted, and these notices to admit are stricken.

Finally, the Court addresses claimant’s motion to compel responses to interrogatories (M-71102). The Court notes that discovery has been held in abeyance pending resolution of defendant’s motion to dismiss, which by this Decision and Order is denied. Given that defendant does not oppose claimant’s motion, the Court directs that defendant provide responses to this demand within 45 days of the filing of this Decision and Order.

Accordingly, the Court grants defendant's motion M-70999 and claimant's motion M-71102. All remaining relief is denied.




July 10, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed November 22, 2005;

2. Affidavit of Donnell Jefferson sworn to November 17, 2005; unnumbered papers annexed;

3. Affirmation of Kevan J. Acton filed December 29, 2005;

4. Affidavit in Opposition of Donnell Jefferson sworn to December 15, 2005; unnumbered pages annexed;

5. Notice of Motion filed December 21, 2005;

6. Affidavit of Donnell Jefferson sworn to December 15, 2005;

7. Notice of Motion filed December 2, 2005;

8. Motion to Strike received November 25, 2005;

9. Notice of Motion filed January 3, 2006;

10. Affirmation of Kevan J. Acton dated December 28, 2005;

11. Affidavit of Donnell Jefferson sworn to February 16, 2006;

12. Affirmation of Kevan J. Acton dated March 7, 2006;

13. Affirmation of Kevan J. Acton dated March 7, 2006;

14. Notice of Motion filed March 3, 2006;

15. Affidavit of Donnell Jefferson sworn to February 27, 2006; Exhibits A-H annexed;

16. Affirmation of Kevan J. Acton dated March 7, 2006; Exhibit A annexed.




[1].Defendant did not respond to these notices and, instead, moved to strike these five notices (M-70999).