New York State Court of Claims

New York State Court of Claims

AVILES v. THE STATE OF NEW YORK, #2006-036-564, Claim No. 111790, Motion No. M-72175


Defendant’s failure to object to interrogatories waives any objection except privilege and palpable impropriety.

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:
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Mary Kavaney, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 23, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for an order compelling defendant to respond to “Claimant’s First Set of Interrogatories . . . and Request for Production of Documents” dated June 30, 2006. [1] Defendant’s initial response, which generated this motion, was a letter dated July 20, 2006 addressed to claimant, advising: “Please be advised that your form does not comply with CPLR in that you have not directed it to a specific State employee. Furthermore, some of your questions go to the central issue of the case and are not appropriate for interrogatories. Thus, the defendant will not be answering them” (Exhibit “2” to Affirmation in Opposition).

Defendant was correct in noting that “some” of claimant’s interrogatories were improper. However, it was wrong in (1) suggesting that there was something wrong with claimant not designating who, on behalf of defendant, was to respond and (2) simply noting in a letter that “some” of the interrogatories were objectionable and not responding to any of them, rather than properly responding to the non-objectionable ones within 20 days after service and stating the objection(s) to the others “with reasonable particularity” (CPLR 3133[a]).

CPLR 3130 provides that “any party may serve upon any other party written interrogatories.” Thus claimant’s interrogatories were properly served on the defendant, the State of New York. CPLR 3133(b) provides that interrogatories shall be answered by “the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information.” The clear intent is that the responding party, when not a natural person, decides who responds on its behalf. Indeed, had claimant attempted to designate who should respond on defendant’s behalf, defendant is likely to have objected, properly, that claimant had no right to make that designation.

Judges of this court have observed, on occasion, that some of the problems inherent in prisoner pro se litigation may be alleviated by the use of disclosure devices such as interrogatories as an alternative to more problematic depositions (see e.g. Sebastiano v State of New York, 112 Misc 2d 1027 [1981]; Price v State of New York, 4 Misc 3d 1008(A) [2004]). Conversely, proceeding as defense counsel has done in this case – refusing to respond to legitimate inquiries and not stating objections in accordance with proper statutory procedure – only serves to increase those difficulties.

Since defendant failed to object to the interrogatories in the manner prescribed in CPLR 3133(a), the court’s inquiry on this motion is limited to whether the demands call for disclosure of privileged information or whether the demands are “palpably improper” (Sheils v State of New York, Hard, J., Claim No. 110009, UID No. 2006-032-045 [May 15, 2006]. No privilege issues are raised. The court finds that interrogatories 1, 10 and 11 are palpably improper; the former because it is overly broad in the extreme and irrelevant, and the latter two because they are essentially requests to admit the ultimate facts to be proven in the case (whether claimant’s treatment complied with applicable policies). The balance of the interrogatories, and the two requests for documents (CPLR 3131), are proper, request relevant information and deserve responses. The court notes that providing the requested documents, which would include claimant’s medical records, may well constitute compliance with certain of the interrogatories.

Accordingly, the motion is granted to the extent that defendant is directed to provide responses to interrogatories 2 through 9, and document requests 1 and 2, within 30 days of the filing of this decision and order.

October 23, 2006
New York, New York

Judge of the Court of Claims

[1].The court considered the Notice of Motion, Affidavit and Memorandum of Law, the Affirmation in Opposition and Exhibits and claimant’s verified “Answer in Reply.”