New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2006-044-518, Claim No. 110190, Motion No. M-72125


Synopsis


Discovery responses submitted during the pendency of claimant’s motion to compel render the motion moot. In any event, a motion to compel is not available with respect to notices to admit.

Case Information

UID:
2006-044-518
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110190
Motion number(s):
M-72125
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SHAWN GREEN, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 21, 2006
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed this claim against defendant State of New York (“defendant”) alleging that he was improperly restrained, and further alleging that his inmate account was charged for a book he ordered, but never received. Claimant now moves to compel a response to his discovery demands. Defendant opposes the motion.


Claimant served a document entitled “Admission, Interrogatories and Discovery to Defendant” on or about June 1, 2006. Defendant’s response was served on August 14, 2006, the same day that the parties were sent notice of the return date of claimant’s motion by the Clerk of the Court. Given that defendant has responded, this motion is denied as moot.

However, even if the Court was to address the merits of the motion, the requested relief would be denied. Initially, a motion to compel is not available with respect to notices to admit (CPLR 3124).[1] 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 [1970]). Claimant’s request that defendant admit that other inmates have been charged with fighting in “blocks exercise stair wells” at Southport Correctional Facility is a broad generalization and may concern material or ultimate issues of fact which “constitute the very dispute of the lawsuit” (Spawton v James E. Strates Shows, 75 Misc 2d 813, 814 [1973]; see also Glasser v City of New York, 265 AD2d 526 [1999]; Howlan v Rosol, 139 AD2d 799 [1988]). Therefore, defendant’s refusal to respond is appropriate. Claimant’s “Interrogatories” to “[s]tate whether incidents same as claimant’s, on September 10, 2004, have occurred at Southport prior to his situation” is more akin to a deposition on written questions. Given that defendant has not stipulated to a deposition on written questions, claimant’s request is improper (see CPLR 3108).

Claimant’s Motion No. M-72125 to compel discovery is denied.



November 21, 2006
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


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

1) Notice of Motion filed July 7, 2006; Affidavit of Shawn Green sworn to July 3, 2006 and attachments.

  1. Affirmation in Opposition of Joseph F. Romani, AAG dated September 15, 2006 and annexed Exhibits A and B.
Filed Papers: Claim filed December 8, 2004; Verified Answer filed December 27, 2004.



[1].Although claimant’s motion concerning the “admission” could be denied without further discussion, the Court will address the overall propriety of such notice.