New York State Court of Claims

New York State Court of Claims

JACOBY v. STATE OF NEW YORK, #2007-037-028, Claim No. 112544, Motion Nos. M-73474, CM-73561


Synopsis


Defendant’s motion for a protective order striking Claimant’s request for admissions and Defendant’s request for a 90-day extension of time to respond and/or object to Claimant’s interrogatories are granted. Claimant’s cross-motion to compel immediate responses to his request for admissions and interrogatories is denied.

Case Information

UID:
2007-037-028
Claimant(s):
BRENT JACOBY, #05-B-0361
Claimant short name:
JACOBY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112544
Motion number(s):
M-73474
Cross-motion number(s):
CM-73561
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Brent Jacoby, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. Friedfertig, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 13, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered with respect to Defendant’s discovery motion (M-73474) and Claimant’s cross-motion to compel discovery (CM-73561):
1. Notice of motion and affidavit of Assistant Attorney General Richard B. Friedfertig,

sworn to May 17, 2007, with annexed Exhibits A-C;

2. Notice of cross-motion and unsworn affidavit of pro se Claimant Brent Jacoby, dated

May 27, 2007, with annexed Exhibits A-B.[1]


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 [2000]). 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 York, Ct Cl, October 20, 2000, Ruderman, J., claim no. 100356, motion nos. M-62148, CM-62378, UID # 2000-010-072),[2] and 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, 236 AD2d 508 [1997]). 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 [1995]; Berg v Flower Fifth Ave. Hosp., 102 AD2d 760 [1984]). 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 denied.

Claimant’s Interrogatories

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 further

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 denied.


July 13, 2007
Buffalo, New York

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




[1]. While Claimant’s accompanying statement is styled as an “Affidavit in Support,” it is unsworn and the last paragraph is typical of language normally included in an affirmation. Because this statement is unsworn and because Claimant is not an attorney or otherwise authorized to use an affirmation in lieu of a sworn affidavit (see CPLR 2106), the Court need not consider it. In the interest of judicial economy, however, the Court has read and considered Claimant’s unsworn statement.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s web site at www.nycourtofclaims.state.ny.us.