5. Opposing affidavit of Assistant Attorney General Richard B. Friedfertig
October 31, 2006.
Filed papers: claim filed June 12, 2006; answer filed July 24, 2006.
This is an action for personal injuries arising out of an incident which
occurred on February 10, 2005, when the pro se Claimant was allegedly assaulted
by another inmate at Gowanda Correctional Facility where he was incarcerated. On
or about August 18, 2006, Defendant was served with Claimant’s notice to
admit. Defendant moved for a protective order (M-72202), striking
Claimant’s notice to admit or, in the alternative, for an order extending
its time to respond to the notice to admit. Claimant then moved for supervision
of discovery (M-72511). These discovery motions will be addressed
Motion for a Protective Order (M-72202)
Section 3123 of the CPLR is aptly named “[a]dmissions as to matters of
fact, papers, documents and photographs.” Pursuant to statute, a notice to
admit permits service of “a written request for admission ...
the genuineness of any papers or documents, or the correctness or fairness of
representation of any photographs ... .
” (CPLR § 3123
[a]). A notice to admit may also be used for the disposition of uncontroverted
questions of fact, but it may not be used to compel admission of fundamental and
material issues or ultimate facts that can only be resolved after trial
(see Meadowbrook-Richman, Inc., v Cicchiello
, 273 AD2d 6 ).
Here, Claimant’s notice to admit is improper as it seeks admissions of
contested, ultimate issues (see Moore v State of New York
, Ct Cl, October
20, 2000, Ruderman, J., claim no. 100356, motion nos. M-62148, CM-62378, UID #
seeks admissions concerning
potentially privileged information (see generally State Farm Fire & Cas.
Co. v Bongiorno
, 237 AD2d 31 ), and otherwise, improperly contains
demands that are not in the form of admissions, but rather in the form of
interrogatories asking the State to consult records or to report on the
activities of a correction officer (see Blackwell v State of New York
Cl, March 4, 2002, Patti, J., claim no. 102669, motion no. M-64246, UID #
2002-013-005). While sections or subsections of one or more of Claimant’s
multifaceted demands may be proper, it is not the responsibility of the Court to
prune a notice to admit. Rather, the proper remedy is to strike the entire
notice to admit (see Kimmel v Paul, Weiss, Rifkind, Wharton &
, 214 AD2d 453 ; Berg v Flower Fifth Ave. Hosp
AD2d 760 ). Accordingly, Defendant’s motion for a protective order
(M-72202) striking Claimant’s notice to admit dated August 8, 2006, in its
entirety, is granted.
Motion for supervision of disclosure
Claimant moves pursuant to CPLR § 3104 for supervision of disclosure on
the grounds that he is proceeding pro se and that the appointment of a referee
to supervise discovery would promote judicial economy. “The supervisory
power conferred by CPLR 3104 should be exercised sparingly and its
exercise is not warranted in the absence of special circumstances (citations
omitted) (Di Giovanni v Pepsico, Inc., 120 AD2d 413, 414 ). This
case does not involve complex issues and there are no special circumstances
which would warrant the appointment of a referee to supervise disclosure
(Johnson v State of New York, Ct Cl, April 7, 2003, Lebous, J., claim
nos. 106601, 106878, motion nos. M-66431, CM-66520, UID # 2003-019-536).
Accordingly, Claimant’s motion for supervision of disclosure (M-72511) is
Based on the foregoing, it is hereby
ORDERED, that Defendant’s motion for a protective order (M-72202)
striking Claimant’s notice to admit dated August 8, 2006, in its entirety,
is granted, and it is further
ORDERED, that Claimant’s motion for supervision of disclosure (M-72511)