2. Notice of cross-motion and unsworn affidavit of pro se Claimant Brent
May 27, 2007, with annexed Exhibits A-B.
Filed papers: Claim filed July 19, 2006; Amended Claim filed November 9, 2006;
Amended Answer filed March 28, 2007.
On May 7, 2007, Defendant received Claimant’s request for admissions and
interrogatories. Defendant moves to strike Claimant’s request for
admissions, or in the alternative, a protective order, and for a 90-day
extension of time to respond and/or object to Claimant’s interrogatories.
Claimant cross-moves to compel responses to discovery. Claimant’s
discovery demands will be discussed separately.
Claimant’s Request for Admissions
Section 3123 of the CPLR is 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 admissions 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 request for admissions is improper as it seeks admissions of
contested, ultimate facts and material issues (see Moore v State of New
, Ct Cl, October 20, 2000, Ruderman, J., claim no. 100356, motion nos.
M-62148, CM-62378, UID # 2000-010-072),
otherwise improperly contains requests that are not in the form of admissions,
but rather in the form of interrogatories or deposition questions (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; DeSilva v Rosenberg
AD2d 508 ). While it is conceivable that a portion of one of
Claimant’s requests may be proper, it is not the responsibility of the
Court to prune an entire request for admissions. Rather, the proper remedy is to
strike the entire request for admissions (Kimmel v Paul, Weiss, Rifkind,
Wharton & Garrison
, 214 AD2d 453 ; Berg v Flower Fifth Ave.
., 102 AD2d 760 ). Accordingly, Defendant’s motion for an
order striking in its entirety Claimant’s request for admissions received
by Defendant May 7, 2007 (M-73474) is granted, and Claimant’s cross-motion
to compel Defendant to respond to his request for admissions (CM-73561) is
Defendant requests a 90-day extension of time to respond and/or object to
Claimant’s interrogatories served May 7, 2007 as these interrogatories
request “an extremely broad category of information” from six
different individual New York State employees. Claimant objects to
Defendant’s request for an extension of time on the grounds that his
interrogatories are not complicated and the requested extension would “tie
up the Court with unnecessary delay.”
The Court would normally expect opposing counsel/parties to grant all
reasonable requests for extensions of time to comply with discovery demands as
is the normal practice in the community. The Court views Defendant’s
request herein as being reasonable as Defendant is requested to consult with
several different State employees in order to formulate responses and/or
objections to Claimant’s interrogatories and as the requested extension
will not inordinately delay this claim as no trial date has as yet been
scheduled. Accordingly, Defendant’s motion for a 90-day extension of time
to respond and/or object to Claimant’s interrogatories (M-73474) is
granted and Claimant’s cross-motion to compel Defendant to immediately
respond to his interrogatories (CM-73561) is denied.
Based on the foregoing, it is hereby
ORDERED, that Defendant’s motion for an order striking Claimant’s
request for admissions in its entirety (M-73474) is granted; and it is
ORDERED, that Defendant’s motion for a 90-day extension of time to
respond and/or object to Claimant’s interrogatories (M-73474) is granted.
Defendant shall have 90 days from the filed date of this Decision and Order to
respond to Claimant’s interrogatories; and it is further
ORDERED, that Claimant’s cross-motion to compel immediate responses to
his requests for admissions and interrogatories served May 7, 2007 (CM-73561) is