New York State Court of Claims

New York State Court of Claims

GIBSON v. THE STATE OF NEW YORK, #2007-037-001, Claim No. 112431, Motion Nos. M-72202, M-72511


Synopsis


Defendant’s motion for a protective order striking Claimant’s notice to admit is granted, and Claimant’s motion for supervision of disclosure is denied.


Case Information

UID:
2007-037-001
Claimant(s):
LAVAR GIBSON
Claimant short name:
GIBSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112431
Motion number(s):
M-72202, M-72511
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Lavar Gibson, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Richard B. Friedfertig, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 2, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant moves for a protective order striking Claimant’s notice to admit (M-72202) and Claimant, in a separate motion (M-72511), moves for supervision of discovery. The following documents were read and considered with respect to these discovery motions:
1. Defendant’s notice of motion for a protective order (M-72202) and supporting

affidavit of Assistant Attorney General Richard B. Friedfertig sworn to August 25, 2006, with attached Exhibit;

2. Verified opposition to motion for a protective order of pro se Claimant Lavar Gibson

sworn to September 13, 2006;

3. Supplemental affidavit in support of motion for a protective order of Assistant

Attorney General Richard B. Friedfertig sworn to October 31, 2006;

4. Claimant’s notice of motion for supervision of disclosure (M-72511) and supporting

affidavit of pro se Claimant Lavar Gibson sworn to September 20, 2006;

5. Opposing affidavit of Assistant Attorney General Richard B. Friedfertig sworn to

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 separately.

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 ... of 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 [2000]). 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 # 2000-010-072),[1] seeks admissions concerning potentially privileged information (see generally State Farm Fire & Cas. Co. v Bongiorno, 237 AD2d 31 [1997]), 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, Ct 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 & Garrison, 214 AD2d 453 [1995]; Berg v Flower Fifth Ave. Hosp., 101 AD2d 760 [1984]). 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
(M-72511)

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 [1986]). 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 denied.

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) is denied.



January 2, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. This and other unreported Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.courts.state.ny.us.