New York State Court of Claims

New York State Court of Claims

SEDNEY v. THE STATE OF NEW YORK, #2006-044-503, Claim No. 111446, Motion No. M-72210


Claimant’s “notices to admit” are akin to interrogatories or depositions on written questions; motion to compel responses is denied and notices are vacated.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBy: Joseph F. Romani, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 17, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant’s motion to compel discovery:

(1) Claimant’s Notice of Motion; Affidavit of Delano Sedney dated August 16, 2006.

(2) Affirmation in Opposition of Joseph F. Romani, AAG dated September 7, 2006 and annexed exhibit.

Filed Papers: Claim filed September 9, 2005; Verified Answer filed October 31, 2005; and claimant’s “Notice to Admission” [sic] filed June 28, 2006.

Claimant, an inmate appearing pro se, moves for an order pursuant to CPLR 3124 to compel defendant State of New York (hereinafter “defendant”) to respond to interrogatories and notices to admit, and further moves for sanctions for defendant's failure to respond to these discovery devices. Defendant opposes the motion.

Initially, claimant requests that “the Court could assign counsel to represent claimant in this matter.” Assignment of counsel in civil matters is discretionary and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right (see Matter of Smiley, 36 NY2d 433; Hines v State of New York, Ct Cl, June 21, 2005, Sise, P.J., Claim No. 110624, Motion M-69991, UID # 2005-028-534). In this case, claimant seeks compensation for personal injuries allegedly caused by the intentional actions of several correction officers. Given that there is no constitutional or statutory authority for the assignment or compensation of counsel in this type of action, and that this type of claim is often handled on a contingent-fee basis, this Court will not assign counsel in this matter (see id.).

With respect to the remaining portion of claimant’s motion seeking disclosure, the Court interprets claimant's moving papers to assert that he “filed” a demand for interrogatories on March 13, 2006. However, no demand for interrogatories was submitted with claimant's motion papers, and no such demand is on file with the Clerk of the Court. Defendant apparently received this demand, as a response dated August 7, 2006 was filed with the Clerk of the Court (and submitted with defendant's papers in opposition to claimant's motion). Defendant objected in its response to the purported demand for interrogatories on the basis that the 779 interrogatories were an abuse of the discovery process, and further that the interrogatories actually constituted a deposition based on written questions, to which the defendant did not stipulate as required by CPLR §3108.[1]

Because the “demand for interrogatories” is not included in either party's papers, claimant's motion to compel with regard to such interrogatories is denied without prejudice (see Schmitt v Carl Meyer's Hof, Inc., 86 AD2d 985). Without the “interrogatories”, the Court cannot comment on defendant's characterization of these “interrogatories” as actually constituting a deposition based on written questions. However, claimant should be advised that questions which seek answers from specific witnesses are not interrogatories, and a motion to compel a response to such questions must be denied (Fagbewest v State of New York, Ct Cl, Aug. 19, 2003, Lebous, J., Claim No. 104241, Motion Nos. M-66992, M-67010, M-67063, M-67091, UID # 2003-019-555). Claimant should also take note that if his discovery demands are excessive, redundant or otherwise inappropriate, he may be subject to sanctions. While financial sanctions may have little or no deterrent effect (McFadden v State of New York, Ct Cl, June 30, 2003, Hard, J., Claim Nos. 103390 et al., Motion Nos. M-66205 et al., UID # 2003-032-070), this Court does have the inherent authority to issue sanctions by restricting the filing of future motions (Moore v State of New York, Ct Cl, Jan. 16, 2001, Sise J., Claim No. 100767, Motion Nos. M-62452, M-62790, M-628914, UID # 2001-028-0511) or claims (Faison v State of New York, 176 Misc 2d 808; Lee v State of New York, Ct Cl, Oct. 4, 1990, Corbet J., Claim No. 79553, Motion No. M-41426), or in the case of extremely egregious misuse of the discovery process, the Court may dismiss the claim in its entirety (Jermosen v State of New York, 178 AD2d 810, 811).

Claimant also seeks a motion to compel a response to his “notice to admission” [sic]. Although this document is also not attached to claimant's moving papers, the Court's file does contain a copy of claimant's demand to admit, and the Court will review this portion of the motion in the interest of judicial economy.

In its response dated August 7, 2006 and referenced above, defendant objected to claimant’s request to admit the genuineness of sixteen documents, because copies of the documents were not served with the request as required by CPLR 3123 (a).[2] Defendant further objected to claimant’s additional 134 requests for admissions to be made by 11 members of the New York State Department of Correctional Services as noncompliant with CPLR 3123 (a), because the “admissions” would require answers that could be substantially disputed at trial.[3] Initially, a motion to compel is not available with respect to notices to admit (CPLR 3124).[4] A party's failure to respond at all generally is deemed an admission (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C:3123:5, at 402), and the facts set forth in such notice will be deemed as true (Carlson v Travelers Inc. Co., 35 AD2d 351). However, in this case, defendant has refused to respond on the basis that the demands are not proper. The court has reviewed the “notice to admission” in its entirety and finds defendant’s argument persuasive. To the extent that claimant requests that defendant admit the genuineness of 16 documents, the failure to include copies of the documents is fatal (CPLR 3123 [a]). Virtually all of the 134 remaining items contained in the notice concern material or ultimate issues of fact and, thus, are matters which “constitute the very dispute of the lawsuit” (Spawton v James E. Strates Shows, 75 Misc 2d 813, 814; see also Glasser v City of New York, 265 AD2d 526; Howlan v Rosol, 139 AD2d 799). In essence, claimant’s notice is more akin to interrogatories (CPLR 3130) or a deposition on written questions (CPLR 3108) and, thus is not proper (see Taylor v Blair, 116 AD2d 204, 206). Notwithstanding that one or two of the requests may be appropriate for a notice to admit, it is “unwise and unnecessary for the court to prune the requests to construct * * * a proper notice to admit” (see Berg v Flower Fifth Ave. Hosp., 102 AD2d 760, 761; McFadden v State of New York, supra). Therefore, claimant’s “notice to admission” is vacated in its entirety (see Berg v Flower Fifth Ave. Hosp., supra).

Claimant’s request for the court to appoint counsel is denied. That portion of claimant’s motion to compel responses to his 779 interrogatories is denied without prejudice, and the remainder of the motion to compel responses to the “notice to admission” is denied and such notice is vacated in its entirety.

October 17, 2006
Binghamton, New York
Judge of the Court of Claims

[1]. Affirmation in Opposition of J. Romani, Esq., Exhibit A, ¶ 1.
[2].Romani affirmation, supra, Exhibit A, ¶ 2.
[4].Although claimant’s motion concerning his “notice of admission” could be denied without further discussion, the Court will address the overall propriety of such notice.